Dao v Office of the Board of Studies

[2004] NSWADT 140

CITATION:	Dao v Office of the Board of Studies [2004] NSWADT 140
DIVISION:	General Division
PARTIES:	APPLICANT Kim Dao RESPONDENT Office of the Board of Studies
FILE NUMBER:	033296
HEARING DATES:	10/02/2004
SUBMISSIONS CLOSED:	05/21/2004
DATE OF DECISION:	07/12/2004
BEFORE:	Hennessy N - Magistrate (Deputy President); Riordan J - Non Judicial Member; Burke T - Non Judicial Member
APPLICATION:	Education Act - home schooling - recommendation to refuse registration - Home schooling - recommendation to refuse registration
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Education Act 1990
CASES CITED:	Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Boxx v Aquilina [2000] NSWSC 166, 15 March 2000
REPRESENTATION:	APPLICANT In person RESPONDENT M Allars, barrister
ORDERS:	The recommendation to refuse to register Anthony Dao for home schooling is affirmed.

Introduction

1 Ms Kim Dao has been “home schooling” her son Anthony, who is now nine years old, since 15 May 2002. Anthony is developmentally delayed and has autism. He started school at Smithfield Public School in 2000 when he was five years old. According to Ms Dao, sometime in 2001 Anthony “dropped down a level” at school and began to dislike going to school. Ms Dao applied for permission to teach Anthony at home and was given approval to do so for the period from 15 May 2002 to 14 November 2002. A second period of home schooling was approved for the period from 15 November 2002 to 14 May 2003. This is an application by Ms Dao for a review of a decision made by Mr Lindsay Swan, an officer of the Office of the Board of Studies (the respondent), to recommend the refusal of her latest application for registration.

2 In accordance with legislative requirements, the Minister of Education (the Minister) has not yet made a final decision in relation to Ms Dao’s application. The Minister must consider Mr Swan’s recommendation and the decision of the Tribunal before making a decision.

Issue

3 The Tribunal’s task is to determine whether Mr Swan’s decision to recommend against registering Anthony for home schooling was the “correct and preferable” decision. (See s 63 Administrative Decisions Tribunal Act 1997 (ADT Act).) In making that determination we must examine the evidence on which Mr Swan based his decision, together with any further relevant evidence which is now available.

Relevant legislation

4 In enacting the Education Act 1990 (the Act), Parliament has had regard to the following principles:

(a) every child has the right to receive an education,

(b) the education of a child is primarily the responsibility of the child’s parents,

(c) it is the duty of the State to ensure that every child receives an education of the highest quality,

(d) the principal responsibility of the State in the education of children is the provision of public education. (See s 4)

5 The key provisions of the Act applicable to these proceedings are ss 71, 72 and 73. Section 71 sets out the process by which a person’s application for registration for home schooling is to be dealt with. Section 71(2) provides that after an application is made, the Minister is to obtain advice on the application from an authorised person. Section 72(1) imposes a duty on the Minister, on receiving the recommendation of an “authorised person”, to either register the child or refuse to register the child. The critical provision, s 72(2) states that:

(2) The Minister is to register the child if the Minister, having regard to:

(a) the recommendation of the authorised person about the application, and

(b) any decision of the Tribunal on an application for a review of the authorised person’s recommendation,

is satisfied that the conditions subject to which registration is required to be given will be complied with.

6 Under s 73(2), the registration of a child for home schooling is subject to certain conditions. One such condition is contained in s 73(2)(b), which requires that the child “receive instruction that meets the relevant requirements of Part 3 relating to the minimum curriculum for schools.”

Effect of s 72(2) and s 73(2)

7 It is a pre-condition to the registration of a child for home schooling that the Minister be satisfied that the conditions subject to which registration is required to be given, will be complied with. (Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; Boxx v Aquilina [2000] NSWSC 166, 15 March 2000 at [23]). That decision must be made having regard to the recommendation of the authorised person about the application and any decision of the Tribunal. As the respondent pointed out, the statutory duty to “have regard to” a matter requires a decision-maker to take into account that matter and give it weight or consideration as a fundamental element in making the determination. (R v Toohey; ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 333, 338.) Since the Minister has a duty to give weight to the recommendation by the authorised person and to consider it as a fundamental element in making a determination, the recommendation should be consistent with the Minister’s duty under s 72(2) to be satisfied that the conditions subject to which registration is required to be given will be complied with.

8 In our view the decision of an authorised officer would not be the “correct and preferable decision” unless the conditions subject to which registration is required to be given will be complied with. One of those conditions is that the child is to receive instruction that meets the relevant requirements of Part 3 relating to the minimum curriculum for schools. The fact that this condition is expressed in the future tense means that it relates to a future, not an existing, state of affairs. The authorised officer (and ultimately the Tribunal) does not need to be satisfied that an applicant currently complies with any conditions, merely that those conditions will be complied with if the application for home schooling is approved.

Evidence relevant to recommendation

9 Mr Swan based his recommendation both on the material that was before him and, indirectly, on the material that was before Mr McPherson, another “authorised person” who prepared a report dated 25 July 2003 on which Mr Swan’s recommendation was based. That material consisted of:

· an interview in Ms Dao’s home (there is no transcript or notes of the content of this interview);

· overview for a Unit of Work on each key learning area;

· diary entries for 25-29 August 2003; and

· samples of painting activity.


Further material provided to the Tribunal by Ms Dao included:

· a list of resources, including books, CD-ROMs, videos, musical equipment, sporting equipment and educational toys and activities;

· a receipt for swimming lessons;

· photocopied title pages;

· information on Geo Shapes;

· work sheets relating to maths, letters of the alphabet, east and west, and

· further samples of paintings.

10 The condition of registration contained in s 73(2) of the Act is that the child is to receive instruction that meets the relevant requirements of Part 3 relating to the minimum curriculum for schools. Section 8(1) sets out the minimum curriculum requirements for schools:

(1) The curriculum for primary school children during Kindergarten to Year 6 must meet the following requirements:

(a) courses of study in each of the 6 key learning areas for primary education are to be provided for each child during each Year,

(b) courses of study relating to Australia are to be included in the key learning area of Human Society and its Environment,

(c) courses of study in both Art and Music are to be included in the key learning area of Creative and Practical Arts,

(d) courses of study in a key learning area are to be appropriate for the children concerned having regard to their level of achievement and needs,

(e) courses of study in a key learning area are to be provided in accordance with any relevant guidelines developed by the Board and approved by the Minister,

(f) courses of study in a key learning area may (but need not) be taught in accordance with a syllabus developed or endorsed by the Board and approved by the Minister.

11 Relevant guidelines referred to in s 8(1)(e) include Part 2 of the “Information Package – Home Education in NSW” (the Guidelines) headed “Minimum Curriculum Requirements”. The edition relevant at the time of Ms Dao’s application was published in February 2002. Based on s 8(1) and Part 2 of the Guidelines, when making a recommendation, Mr Swan had to be satisfied that Ms Dao would be able to comply with the requirements to:

· provide a course of study for Anthony in each of the six key learning areas, namely English, Mathematics, Science and Technology, Human Society and its Environment, Creative and Practical Arts and Personal Development Health and Physical Education (further details are set out in the guidelines);

· include courses of study relating to Australia in the key learning area of Human Society and its Environment;

· include study of Art and Music in the key learning area of Creative and Practical Arts, and

· ensure that the courses of study are appropriate for Anthony having regard to his level of achievement and needs.

12 The Guidelines contain further minimum curriculum guidelines, however it is not necessary to set them out in these reasons.

Basis for Mr Swan’s recommendation

13 Mr Swan adopted the recommendation of Mr McPherson contained in his report of 25 July 2003. In summary Mr McPherson found that:

· the educational facilities and premises meet the requirements for home schooling;

· Ms Dao is committed to home schooling;

· the current program provided by Ms Dao does not meet the minimum curriculum guidelines;

· there was no scope or sequence that demonstrated balance across the key learning areas;

· Ms Dao has no process in place for recording activities which demonstrate achievement or progress;

· there are no past records demonstrating student achievement or progress despite the fact that the issue of record keeping has been addressed by authorised persons on previous visits; and

· the learning activities have not been designed to assist in addressing a child with special learning needs.

14 Ms Dao conceded that she needs to produce a more detailed program for Anthony and that she needs to improve the way she records his achievements and progress. However she submitted that Mr Swan did not take into account the fact that the courses of study have to be appropriate for Anthony’s needs. Mr McPherson’s report (which was adopted by Mr Swan) put the onus on Ms Dao to design learning activities which would address Anthony’s learning needs. He said in that report:

Ms Dao told me that Anthony has been diagnosed with autism. The learning activities provided have not been designed to assist in addressing a child with special learning needs.

15 Ms Dao said that she has sought and obtained assistance from an organisation for Vietnamese parents of autistic children and that she would continue to obtain assistance from appropriate groups and organisations in the future. Mr McPherson acknowledged that fact in his report. Mr Swan concluded that the current program provided by Ms Dao does not meet the minimum curriculum guidelines, even though she has endeavoured to do so.

Tribunal’s conclusion

16 In our view, based on all the evidence, the learning activities provided by Ms Dao did not comply with the minimum curriculum guidelines including that courses of study are appropriate for Anthony’s needs. Although the time allocated to particular learning areas was not the focus of particular comment from the decision makers, it seems to us that the time allocated to student learning in a number of areas is insufficient. For example, the time allocated to listening skills appears to be inadequate for a child who is autistic. Those children generally require short, intensive periods of time to be devoted to a given area. Finally the resources being used by Ms Dao to support Anthony’s learning and the system of recording his learning experiences are inadequate.

17 The next question is whether, on the basis of all the evidence including Ms Dao’s current non-compliance with minimum curriculum guidelines, her commitment to home schooling, her capacity to home school, her past record and the credibility of any assurances she gives about her future conduct, we are satisfied that the conditions subject to which registration is required to be given will be complied with in the future.

18 There is no doubt that Ms Dao is committed to home schooling. Her capacity to home school, her past record and her future intentions are also relevant. During a visit on 10 September 2002, Ms Thomas identified various deficiencies and made recommendations, including that she:

· keep a record of learning activities undertaken each day;

· document her teaching/learning program; and

· pay more attention to developing Anthony’s skills in speaking English.

19 In a subsequent home visit on 6 May 2003, Ms Thomas noted that the teaching/learning program had not been documented and that the activities provided to Anthony were virtually the same as described at the last visit. Ms Thomas wrote that although Ms Dao now keeps a diary as a record of daily learning activities, there were no records of learning activities related to Music and Human Society and Its Environment. Mr Swan’s conclusion in evidence he gave to the Tribunal was that the material Ms Dao provided did not demonstrate a capacity to conduct home schooling for Anthony. In particular, the information does not document an adequate program of learning for a nine year old with special learning needs or demonstrate how proper record keeping of the progression of learning will be kept.

20 Ms Dao’s previous applications for registration for home schooling were granted for two periods of six months. Ms Dao’s requested that the Tribunal recommend a further six month registration period to enable her to address any deficiencies in the learning program and ensure that conditions of registration are complied with. While we do not doubt Ms Dao’s commitment to home-school, her failure to significantly improve her compliance with minimum curriculum standards during the year that she was registered strongly suggests that she does not have the capacity to comply with those requirements in the future. Her willingness to access community resources and her request for assistance and regular visits are praiseworthy but as the respondent points out, it is under no obligation, either by virtue of the objects of the Act or otherwise, to provide training programs for people who teach children with special needs. For those reasons, the recommendation to refuse to register Anthony Dao for home schooling is affirmed.

Comments on the process

21 Even though we agree with the respondent’s ultimate decision, several issues arose in the Tribunal’s mind about the decision making process. Firstly, the Tribunal was surprised that Mr Swan made a decision without having access to a summary of what Ms Dao said in her interview with Mr McPherson or seeing the material she provided in support of her application. Another concern was that neither Mr Swan nor Mr McPherson explained to Ms Dao why they reached a different view from that expressed previously by Ms Anne Thomas. In her report of 10 September 2002, Ms Thomas stated that “the learning activities provided comply with the minimum curriculum guidelines and provide scope and sequence in and balance across the key learning areas, except English . . .” That conclusion was itself inconsistent with Ms Thomas’ later report of 6 May 2003, where she said that “. . . there was no evidence of scope and sequence in the Key Learning Areas.” None of these inconsistencies was explained.

22 The Tribunal was also concerned by the apparent lack of input from the various “authorised persons” in relation to the requirements for children with special needs. While it is ultimately the responsibility of the person providing home schooling to provide courses of study that are appropriate for Anthony’s special needs, the Authorised Persons Handbook states: “In the context of the visit you may provide advice to assist the applicant in areas requiring development.” It is not apparent that any such advice was provided to Ms Dao, and certainly none was provided in her native language. Mr Swan gave evidence that while an “authorised person” has access to specific information to assist parents of children with special needs, he did not know whether any of the people who assessed Ms Dao had sought out that information. While not legally obliged to provide advice, it seems to us that Ms Dao would have benefited from information and advice about home schooling a child with autism.

23 Finally, the Authorised Persons Handbook states: “The Home Education Unit is responsible for allocating applications to the most appropriate Authorised Person.” While we do not have evidence of the experience of the people who assessed Ms Dao, it would obviously be important for that person to have experience in the educational needs of students with autism.

Order

The recommendation to refuse to register Anthony Dao for home schooling is affirmed.