DFD v New South Wales Education Standards Authority

[2018] NSWCATAD 48

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DFD v New South Wales Education Standards Authority [2018] NSWCATAD 48
Hearing dates:	25 September 2017
Date of orders:	28 February 2018
Decision date:	28 February 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	DAC Robertson, Senior Member
Decision:	1. The Tribunal makes a different recommendation to the Minister, namely, that ‘E’ be registered for home schooling from 15 February 2017 to the day before his sixth birthday inclusive. 2. Pursuant to s 64 of the Civil and Administrative Tribunal Act the name of the applicant and the child concerned are not to be published to any person other than the parties and their representatives and the Minister for Education.
Catchwords:	ADMINISTRATIVE REVIEW – Education Act – home schooling – registration – whether registration restricted to children of compulsory school-age – significance of policy – whether policy is Government policy
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) ss 63, 64 Civil and Administrative Tribunal Act 2013 (NSW) 2013 (NSW) s 64 Education Act 1990 (NSW) ss 4, 5, 6, 21B, 22, 23, 71, 72, 73, 107, 108 Education Standards Authority Act 2013 (NSW)
Cases Cited:	ANC High School Pty Ltd v Board of Studies [2012] NSWADT 125 Board of Studies v ANC High School Pty Ltd (GD) [2013] NSWADTAP 8 DMM v Board of Studies, Teaching and Educational Standards [2016] NSWCATAD 38 Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634 NSW Education Standards Authority v DMM [2017] NSWCATAP 149 Whitehouse v Commissioner of Fair Trading [2017] NSWCATOD 108
Category:	Principal judgment
Parties:	DFD (Applicant) New South Wales Education Standards Authority (Respondent)
Representation:	Applicant: In Person assisted by D Gribble D Birch (Counsel) (Respondent)   Solicitors: Crown Solicitors Office (Respondent)
File Number(s):	2017/00137658
Publication restriction:	The name of the applicant and the child concerned are not to be published to any person other than the parties and their representatives and the Minister for Education

REASONS FOR DECISION

Overview

1. This is an application for review pursuant to the Administrative Decisions Review Act 1997 (NSW) and s107(1)(d) of the Education Act 1990 (NSW) of a recommendation of an authorised person that the Minister for Education refuse to register a child for home schooling. Pursuant to s 108 of the Education Act the Tribunal has the power to confirm the recommendation or make a different recommendation.

2. The applicant is the mother of the child who I shall refer to as E.

3. The respondent, the NSW Educational Standards Authority (NESA), is a body corporate constituted under the Education Standards Authority Act 2013 (NSW) and is responsible for administering the programme under the Education Act for registration of children for home schooling. NESA was formerly known as the Board of Studies, Teaching and Educational Standards.

4. At the hearing of the application I made orders pursuant to s 64 of the Civil and Administrative Tribunal Act prohibiting the publication of the name of the applicant or her son, the subject of the decision under review.

5. At the hearing the applicant was assisted by Ms K Gribble who described herself as a friend of the applicant. I permitted Ms Gribble to make oral submissions on behalf of the applicant. The respondent was represented by Mr D Birch of Counsel.

6. Each party had filed a bundle of documents and submissions. The whole of each bundle was received in evidence without seeking to distinguish between evidence and submissions.

Background

7. The background to the application was set out in the applicant’s submissions. The significant facts, which were not controversial, were as follows:

1. The applicant has six children who are being home schooled;

2. E is the sixth child;

3. E experiences disability as a result of severe anxiety;

4. The applicant applied to register E for home schooling in January 2017 at which time he was 5 years and 8 months of age.

5. The process for registration of children for home schooling in New South Wales is described in the “Registration for Home Schooling in NSW Information Package”, the relevant version of which was included in the applicant’s bundle.

6. The process involves parents sending an application for home schooling to the respondent which allocates an authorised person to assess the application. Parents provide that authorised person with evidence of their planning for home schooling. The authorised person assesses their compliance with the Education Act and NESA policy and makes a recommendation whether or not the child is to be registered for home schooling.

7. On 15 February 2017 the authorised person appointed by NESA attended the applicant’s home and conducted an assessment of the education being delivered to E.

8. The applicant requested that E be registered for home schooling from the date of the registration visit. The recommendation made by NESA to the Minister was that E be registered for home schooling commencing from E’s 6th birthday which was in May 2017.

9. The applicant sought an internal review of the decision not to recommend registration of E for home schooling from 15 February 2017 until his 6th birthday.

10. NESA conducted an internal review and notified the applicant by letter dated 7 April 2017 that the internal reviewer had decided to affirm the original decision to refuse home schooling registration of E for the period from 15 February 2017 to the date E turned 6 years of age in May 2017.

8. The reason provided by the internal reviewer for the decision was that “E is not eligible for home schooling registration until he turns 6 years of age”.

9. The internal reviewer recorded:

(a)   your education of [E] at home may commence from any age; registration for home schooling is not a prerequisite for educating any child from birth until the age of compulsory schooling required by the Act.

(b)   your email dated 17 March 2017 notes that [E] is already being delivered an education based on and taught with the NESA syllabuses; the delivery of this education has occurred without [E] being registered for home schooling and can continue to occur without him being registered until he turns six and becomes of compulsory school age when he must be registered for home schooling or enrolled in a government or non-government school;

(d)   whilst you could have chosen to enrol [E] in a school before he turns six you have chosen not to do so nor is he required to be enrolled in a school;

(e)   eligibility for enrolment in a school is not the same as eligibility for home schooling registration; each schooling option under the Act is subject to the particular and different policy provisions of that option, that is, enrolment in a government school is subject to the policies of the Department of Education, enrolment in a non-government school is subject to the provisions of the policies of the particular legal entity that is the proprietor of the particular school where enrolment is sought and registration for home schooling under the Act is subject to the policies of NESA;

(f)   the provisions of the Information Package provide for eligibility for home schooling registration from the age of six years;

(g)   registration for home schooling does not provide ‘recognition’ that a child is ‘undertaking’ schooling; registration for home schooling is a legitimate option for a parent for the compulsory schooling of a child of compulsory school age and provides approval for the parent to provide that education in the child’s home;

(h)   the NESA syllabuses are published on its website and may be used by the parent of a child or young person or an adult of any age for educative purposes without being registered for home schooling;

(i) section 6 of the [Education] Act provides for every person concerned with the administration of the Act to have regard (as far as practicable or appropriate) to a number of objectives including at 6(a), assisting each child achieve his or her educational potential; NESA, in as far as it is practicable or appropriate, has regard to section 6(a) of the Act in the availability of the NESA syllabuses to any parent or child in NSW without being registered, amongst a range of other NESA provisions, noting that NESA is not responsible for delivering an education to any child in NSW;

(j)   the Information Package provides for an Authorised Person to make a recommendation following the assessment of an application for home schooling registration including, if registration is recommended, the recommended period of registration; there are no provisions requiring the Authorised Person to recommend registration from the date of the assessment and, in many cases, a recommended period of registration does not commence from the date of the assessment;

(k)   any recommendation for home schooling registration from an Authorised Person must be consistent with the policies of NESA for the home schooling registration of children under the Act;

(l)   my decision is consistent with the published policies of NESA and the recommendation from the Authorised Person who, following the assessment of your application for home schooling registration, recommended a period of registration to commence from [E’s] sixth birthday, that is, from ** May 2017 until and including 3 February 2018.

10. The reason the applicant is dissatisfied with the decision is explained in her submissions as follows. Because E is not able to attend the local school because of disability, the applicant is eligible for the Federal Government Centrelink payment “Assistance for Isolated Children”. This payment is intended to “help eligible parents and carers with the extra cost of educating their children when they cannot go to an appropriate government school”. Centrelink requires, in order to confirm eligibility for the assistance for isolated children payment, that parents provide a copy of a certificate of registration for home schooling. Because E was not registered for home schooling until he turned 6, the applicant was unable to receive the assistance for isolated children payment for approximately three months between 15 February 2017 and E’s 6th birthday. The applicant estimates that the amount which she would have received was about $1,500. The applicant asserts that, if E is registered for home schooling for the period from 15 February 2017 until his 6th birthday, Centrelink would “likely backdate the assistance for isolated children payment so that I am able to access this funding to support his education”.

11. The applicant produced a copy of an email from an officer apparently employed by the Commonwealth Department of Human Services which states that, if the date of E’s registration for home schooling were adjusted to February 2017, the assistance for isolated children payments would be backdated to the date of registration.

12. The applicant referred to a number of provisions of the Education Act which it is appropriate to set out.

13. Home schooling is defined in s 3 of the Education Act as follows:

Home schooling means schooling in the child’s home, other than distance education provided by a government or registered non-government school in which the child is enrolled.

14. The principles of the Education Act are set out in s4 which provides:

4 Principles on which this Act is based

In enacting this 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.

15. The principal objects of the Education Act are set out in s 5 as follows:

5 Principal objects of this Act

The principal objects of this Act are as follows:

(a)   to set out aspects of the school curriculum, including the minimum curriculum for school registration and the curriculum for candidates for the Record of School Achievement and the Higher School Certificate,

(b)   to provide for the establishment and operation of government schools,

(c)   to ensure that only government schools established under this Act or non-government schools registered under this Act operate in New South Wales,

(d)   to allow children to be educated at home,

(e)   to provide for the grant of Records of School Achievement and Higher School Certificates and for the accreditation of non-government schools that are competent to present candidates for them.

16. The applicant relied on sub-paragraph 5(d) as demonstrating that “throughout the Education Act home schooling is treated as an educational option that is equal with government schooling and equal with non-government schooling”.

17. The objects for the administration of the Education Act are set out in s 6(1) as follows:

6 Objects for administration of this Act or of education

(1)   It is the intention of Parliament that every person concerned in the administration of this Act or of education for children of school-age in New South Wales is to have regard (as far as is practicable or appropriate) to the following objects:

(a)   assisting each child to achieve his or her educational potential,

(b)   promotion of a high standard of education in government schools which is provided free of charge for instruction and without discrimination on the ground of sex, race or religion,

(c)   encouraging innovation and diversity within and among schools,

(d)   provision of an education for children that gives them access to opportunities for further study, work or training,

(e)   mitigating educational disadvantages arising from the child’s gender or from geographic, economic, social, cultural, lingual or other causes,

(f)   provision of an education for Aboriginal children that has regard to their special needs,

(g)   development of an understanding of Aboriginal history and culture by all children,

(h)   provision of an education for children from non-English speaking backgrounds that has regard to their special needs,

(i)   recognition of the special problems of rural communities, particularly small and isolated communities,

(j)   provision of opportunities to children with special abilities,

(k)   provision of special educational assistance to children with disabilities,

(l)   development of a teaching staff that is skilled, dedicated and professional,

(m)   provision of opportunities for parents to participate in the education of their children,

(m1)   provision of opportunities for Aboriginal families, kinship groups, representative organisations and communities to participate in significant decisions under this Act relating to the education of their children,

(n)   provision of an education for children that promotes family and community values.

18. The applicant referred to sub-paragraphs (a), (e) and (k) as relevant to her application.

19. Sub-section 6(2) provides “this section does not limit the operation of any other provision of this Act”.

20. Section 21B of the Education Act provides for compulsory school ages. The provisions relevant to this application are as follows:

21B Compulsory school-age

(1)   For the purposes of this Act, a child is of compulsory school-age if the child is of or above the age of 6 years and below the minimum school leaving age.

(2)   The minimum school leaving age is:

(a)   the age at which the child completes Year 10 of secondary education (subject to participation required by sub-section (3)), or

(b)   the age of 17 years,

whichever first occurs.

(3)   A child who completes Year 10 of secondary education but who is below the age of 17 years is of compulsory school-age unless the child participates on a full-time basis in:

(a)   approved education or training, or

(b)   if the child is of or above the age of 15 years—paid work or a combination of approved education or training and paid work.

21. Sections 22 and 23 of the Education Act relevantly provide as follows:

22   Compulsory schooling—duty of parents

(1)   It is the duty of the parent of a child of compulsory school-age to cause the child:

(a)   to be enrolled at, and to attend, a government school or a registered non-government school, or

(b)   to be registered for home schooling under Part 7 and to receive instruction in accordance with the conditions to which the registration is subject.

(2) That duty is satisfied if the child receives instruction of a kind referred to in section 23 (2).

(3)   Schooling required by this section is referred to in this Act as compulsory schooling.

23   Offence if parent fails to send child to school

(1)   A parent of a child of compulsory school-age is guilty of an offence if the parent fails to cause the child:

(a)   to be enrolled at, and to attend, a government school or a registered non-government school, or

(b)   to be registered for home schooling under Part 7.

22. Sections 71 to 73 of the Education Act (which are in Part 7) deal with the process of registration of children for home schooling. They provide as follows:

71 Application for registration for home schooling

(1)   A parent of a child may apply in writing to the Minister for registration of the child for home schooling.

(2)   As soon as practicable after such an application is made, the Minister is to obtain advice on the application from an authorised person.

(3)   The authorised person is to notify the applicant in writing of a recommendation to the Minister that the application be refused.

72   Registration for home schooling

(1)   As soon as practicable after receiving the recommendation of an authorised person about an application for registration of a child for home schooling, the Minister:

(a)   is to register the child in a Register kept by the Minister for the purpose, or

(b)   is to refuse to register the child.

(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 an administrative 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.

(3) The Minister may register more than one child of any one parent for home schooling.

(4)   If the authorised person recommends that the Minister refuse to register a child for home schooling, the Minister may not do so unless:

(a)   30 days have elapsed since the applicant was given written notice of the authorised person’s recommendation and no application has been made to the Tribunal for an administrative review of the recommendation within those 30 days, or

(b)   the Tribunal has determined an application for an administrative review (made within those 30 days) of the recommendation and the Minister has considered any contrary recommendation of the Tribunal and the reasons for it, or

(c)   any such application for an administrative review of the recommendation has been withdrawn.

(5) The Minister is to notify the applicant in writing of the Minister’s decision to refuse to register the child for home schooling.

(6)   On registration of a child for home schooling, a certificate of registration is to be issued for the child to the applicant for registration.

73 Conditions and duration of registration for home schooling

(1)   The registration of a child for home schooling is subject to the conditions specified in the certificate of registration.

(2)   The conditions so specified:

(a)   must comply with the requirements of the regulations, and

(b)   subject to any such regulations, must provide for the child to receive instruction that meets the relevant requirements of Part 3 relating to the minimum curriculum for schools.

(3)   Registration of a child for home schooling is to be limited in its operation to a period (not exceeding 2 years) specified in the certificate of registration.

The applicant’s response to the internal review decision

23. The applicant did not dispute the accuracy of most of the factual matters upon which the internal reviewer had based her refusal to recommend registration as set out at [9] above. The applicant did dispute the matters stated by the internal reviewer in sub-paragraphs (d) and (g).

24. In response to sub-paragraphs (a), (b), (f), (h) and (k) the applicant submitted that the matters there set out were not “a just reason to refuse registration”.

25. In respect of sub-paragraphs (e), (f) and (l) the applicant did not dispute that the sub-paragraphs “stated the respondent’s policy” but challenged the policy and argued that it should not have been followed.

26. In respect of sub-paragraph (d) the applicant disputed that she could have chosen to enrol E in a school before he turned 6 on the basis that, by reason of his disability, E could not be enrolled in a school. The applicant further submitted that in any event that was not a just reason to refuse registration.

27. In respect of sub-paragraph (g) the applicant disputes that registration for home schooling “does not provide ‘recognition’ that a child is ‘undertaking’ schooling”. The applicant submits that registration for home schooling is the only way of proving to various authorities, including Centrelink, that a child is undertaking home schooling.

28. In respect of sub-paragraph (i) the applicant submitted that the respondent is required to have regard to the object of “assisting each child to achieve his or her educational potential”. The applicant submits that “registration would promote the education of [E] by facilitating access to resources to support his education”. The applicant submits that in order to have regard to the object set out in Section 6(1)(a) of the Education Act NESA was required to recommend E’s registration for home schooling even before he reached 6 years of age.

The applicant’s submissions

29. The applicant submitted that there is no legal impediment to NESA recommending the registration of E for home schooling. The applicant referred to the decision of Senior Member Walker in DMM v Board of Studies, Teaching and Educational Standards [2016] NSWCATAD 38 (DMM v BOSTES) which determined that the word “child” in s 71(1) meant a person under the age of 18 rather than a narrower interpretation meaning “a child of compulsory school age”.

30. The applicant further submitted that, as at the date of assessment, E was 5 years and 8 months of age and was of “normal school age” and therefore should have been able to be registered for home schooling.

31. The applicant referred to statistical evidence produced by the NSW Department of Education’s Centre for Education Statistics and Evaluation which showed that 79% of kindergarten students in NSW government schools had not turned 6 by the middle of the school year and also referred to the NSW Education Department policy that children can start kindergarten at the beginning of the school year if they turn 5 on or before 31 July of that year, which effectively permits children to enrol in school at 4 years and 6 months of age.

32. The applicant submitted thirdly, that to permit E to be registered for home schooling would be consistent with the intention of the Act in supporting home schooling as being equal with government schooling and non-government schooling.

33. The applicant referred to the principal objects of the Act set out in s 5, which include, along with the establishment and operation of government schools and the registration of non-government schools, “to allow children to be educated at home”.

34. The applicant referred at length to the Parliamentary debates on the Education Reform Bill 1990, which subsequently became the Education Act, although not to the explanatory memorandum or second reading speech.

35. It appears that similar material was put before the Tribunal in DMM v BOSTES. At [48] the Senior Member stated:

The applicant submits that the extrinsic materials favour her position and cites several passages from the parliamentary debates averring that the new Act will give home schooling equal status with school attendance ([Parliamentary Debates, Legislative Assembly, 29 March 1990] pp 2021, 2792, 3029 3086, 3093, 2015, 2086). The second reading speech by the minister, Dr Metherell, is less explicit, however. After pointing out that the 1987 Act merely refers to the minister’s power to grant exemption if satisfied that the child receives appropriate regular and efficient instruction at home, Dr Metherell said, “That is all that is said. In this area the advantage of the Education Reform Bill is that it clearly expresses the process under which registration for home schooling is to be considered and granted” (p 1352). The parliamentary debates therefore do not add a great deal to the inferences that can be drawn from the legislative history and from construing the Act as a whole.

36. The Senior Member also referred to the second reading speech at [32] where he stated:

The minister’s second reading speech (Parliamentary Debates, Legislative Assembly, 29 March 1990, p 1352) explained that under the 1987 act the exempting power for home schooling was required only for children in the compulsory school age bracket. The speech showed that the purpose of the new provisions was more carefully to regulate home schooling and to ensure that during the compulsory ages, children would be properly educated. It was not to confer more benefits on home-schooled pupils. The speech drew the link between the old Act and the purpose of the new regime. The purpose of the registration provisions was spent once the pupil was over 17. The 2009 amendments did not alter that position.

37. The applicant also relied upon a comment in DMM v BOSTES at [45] where, in response to a submission that:

“The creation of a regulatory system that was made possible by registration showed a legislative intention to restrict the availability of home schooling, not to treat it on an equal basis with public and private schooling”,

38. the Senior Member stated:

“In my view, however, the Act alters the position of home schooling from being an exceptional type of instruction that is likely to be so uncommon that it can be handled on a case-by-case basis, into an accepted form of education that is treated as equivalent to schooling for most purposes. The establishment of a regulatory structure, rather than being intended to restrict the availability of home schooling, appears to contemplate that it will become more common and it is therefore necessary to have settled procedures to ensure that it will be conducted in a proper manner. As the applicant points out, the Education and Public Instruction Act 1987 mentioned home schooling only once, and that was in the context of the minister granting an exemption from school attendance. In the present Act, however, the term "home schooling" is used 42 times.”

39. The applicant submitted, fourthly, that the respondent has an obligation to administer the Act in such a way as to facilitate the best educational outcomes for children and that by adopting an inflexible policy that prevented a child under the age of 6 from being registered for home schooling, NESA was failing to have regard to the objects of the Act. The applicant referred to paragraphs [46] and [47] of the decision of Senior Member Walker in DMM v BOSTES where the Senior Member stated:

46 It is notable also that among the principal objects of the Act as set out in s 5 is “to allow children to be educated at home”. Also in part 2, which sets out the objects of the Act, s 6 states that “It is the intention of Parliament that every person concerned in the administration of this Act… is to have regard (as far as is practicable or appropriate) to the following objects: …(e) mitigating educational disadvantages arising from the child’s gender or from geographic, economic, social, cultural, lingual or other causes,…(k) provision of special educational assistance to children with disabilities”.

47 The respondent submitted that s 6 relates only to the administration of the Act and has no bearing on the construction of s 71(1). But the provisions of s 6 are plainly intended to be more detailed instances of the kinds of priorities that are to govern the operation of the Act. And “every person concerned in the administration of this Act” would appear to include the board and this tribunal. Further, s 5 is unequivocal in declaring home education to be one of the Act’s principal objects. Taken together, those points favour an interpretation that will more broadly promote those objects, rather than one that treats s 71(1) purely as a refinement of the exemption process.

40. The applicant recognised that the obligation to have regard to the objects of the Act was imposed only “as far as is practicable or appropriate” but submitted that it was not onerous or difficult for NESA to register E for home schooling before his 6th birthday. The applicant submitted that to do so would not disadvantage any other student but would be of assistance to E.

41. The applicant cited paragraph [49] of the decision in DMM v BOSTES in which the Senior Member observed:

The respondent submitted that registration in itself confers no benefit under the Act. In that respect the board may be underestimating the value of registration for a child facing special challenges. The applicant observes that ER is experiencing anxiety and uncertainty from her lack of official educational status. It is well known that children and adolescents do not like to feel different from their peers, and in this case ER feels that she is in “a no man’s land”. Registration in itself, quite apart from conferring the ability to obtain student concessions, appears to have an intrinsic value for a child in her position and therefore would assist in achieving the objects set out in s 6.

42. The applicant also referred to the decision of an Appeal Panel of this Tribunal in NSW Education Standards Authority v DMM [2017] NSWCATAP 149 at [104] to [107]:

104   In making this submission the appellant conceded that there may be consequences for the child because the certificate of registration expires. However the appellant said any collateral benefit that was lost, such as obtaining a concession relevant to secure admission to university, was not a relevant consideration in determining an application for registration for home schooling or the period of registration.

105   In our view this submission should not be accepted. This submission seeks to compartmentalise the process of education and interpret the Act in a manner inconsistent with its terms.

106   … the Act clearly recognises a process of education that begins at Kindergarten and extends up to Years 11 and 12. That may or may not involve the attainment of awards under Part 8 Division 2 of the Act, a matter dependent on both achievement and the education model (ie school or home schooling) selected.

107   While children may receive less or no direct benefits from the State because of the education model chosen by their parents, the proposal for education and any indirect benefits arising from registration are matters relevant to registration and the terms on which it is approved. The objects specified in the Act allow flexibility in the education model, subject to any process of approval being on terms that satisfy the obligations of a parent and the State under the Act.

43. The applicant submitted that “extending registration to home school students who are of school age but younger than 6 years is absolutely necessary to prevent discrimination against home school students who have experienced disability”.

44. The applicant submitted that the work involved in preparing and presenting an application for home schooling registration would ensure that a recommendation for the registration of E before his 6th birthday would not result in a flood of applications.

The Respondent’s submissions

45. The respondent contended that the issues of substance in the application were:

1. Whether under s 71 of the Education Act E was eligible for registration for home schooling before the age of 6 years; and

2. If E was eligible, whether the correct and preferable decision was for E to be registered, having regard to the government’s unambiguous policy against the registration of children for home schooling before the age of 6.

46. The respondent submitted that s 71, properly construed, limits the entitlement of a parent to apply for registration of a child for home schooling to a child that is above the age of 6 years. The respondent acknowledged there was no express limitation within s 71 as to the lowest age at which registration may be granted. The respondent submitted that construing s 71 as so limited is consistent with the “broader statutory regime in the context of which it forms part”. The respondent referred to the Appeal Panel decision in NSW Education Standards Authority v DMM at [89] and submitted that the Appeal Panel expressly connected the capacity to be registered for home schooling with the existence of a duty on the parent to educate the child for the period of registration.

47. Paragraph [89] of the Appeal Panel’s decision was as follows:

It follows that a student to be registered for home schooling must also be a child (under 18) at the commencement of the period for which they are to be registered. Otherwise, there would be no existing duty on the parent to educate the child at the commencement of the period of registration (because the child was 18) and no right of the child to otherwise be enrolled and attend a government school in his or her designated intake area.

48. The respondent submitted that under Part 5 of the Education Act there is no duty on parents to educate a child before the age of 6.

49. The respondent sought to distinguish the decision in DMM v Board of BOSTES on the basis that that case considered the upper age limit at which a child could be registered for home schooling. The respondent submitted that, given the use of the term ‘child’, the “possible ages that could be embraced by the applicant’s construction” was necessarily limited to a couple of years being ages at which children are typically at school (ie 17 to 18 years old). The respondent submitted that:

“The interpretational choice in this case is different. It concerns the minimum age at which a child might be registered for home schooling under s 71.”

50. The respondent submitted:

“For the minimum age the concept of ‘child’ does not set a lower limit. That is because the ‘literal’ interpretation of the term ‘child’ extends down to birth”.

51. The respondent submitted that it would be manifestly contrary to the purpose of the Act and the structure of the Act as a whole to adopt a construction of the term ‘child’ in s 71 which did not fix a minimum age at which a child might be registered for home schooling.

52. The respondent submitted:

“Absent any other basis in the Act for limiting the minimum age at which a ‘child’ might be registered for home schooling under s 71, and having regard to the core purpose of registration for home schooling being the education of children at home without attending a school during the compulsory school age, the sensible construction of the minimum age of the term ‘child’ for the purposes of s 71 is the age of 6 years, being the age at which a child becomes ‘of compulsory school age’”.

53. The respondent also sought to distinguish the decision in DMM v BOSTES as “particularly focussed on the circumstances of a particular child whose registration was an issue in that case”.

54. In support of the submission that, if s 71 did permit the registration of a child under the age of 6 for home schooling, the decision not to recommend registration of E before he turned 6 was nevertheless the correct and preferable decision, the respondent submitted that any recommendation that E be registered from 15 February 2017 would be futile as no relief would be consequential upon that recommendation.

55. The respondent also relied upon s 64 of the Administrative Decisions Review Act which provides:

64 Application of Government policy

(1)   In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal must give effect to any relevant Government policy in force at the time the administratively reviewable decision was made except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case.

(2)   The Premier or any other Minister may certify, in writing, that a particular policy was Government policy in relation to a particular matter.

(3)   The certificate is evidence of the Government policy concerned and the Tribunal is to take judicial notice of the contents of that certificate.

(4)   In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may have regard to any other policy applied by the administrator in relation to the matter concerned except to the extent that the policy is contrary to Government policy or to law or the policy produces an unjust decision in the circumstances of the case.

(5)   In this section:

Government policy means a policy adopted by:

(a)   the Cabinet, or

(b)   the Premier or any other Minister,

that is to be applied in the exercise of discretionary powers by administrators.

56. The respondent submitted that the “Registration for Home Schooling in NSW – Information Package” was a policy applied by an administrator for the purposes of s 64(4) of the ADR Act, and one to which the Tribunal may have regard.

57. The respondent also relied upon a document not apparently taken into account by the respondent’s internal reviewer. The document is a schedule attached to a letter from the then Premier of NSW dated 13 July 2015 addressed to the Director of the NSW Parliament “Select Committee on Home Schooling”. The letter states:

“Please find attached the NSW government response to the inquiry of the NSW Legislative Council Select Committee on Home Schooling.”

58. The schedule attached to the letter sets out what are apparently 24 recommendations made by the Select Committee and the “NSW Government Response” to each recommendation.

59. Recommendation 7 was:

“That the Minister for Education review the registration requirements for home schooling so as to allow students from 4.5 years to 19 years to be registered for home schooling”.

60. The NSW government response is recorded as:

“Recommendation not supported.

The Education Act requires the compulsory schooling of children aged 6 to 17 years. Parents are free to choose to home school their children outside of this compulsory schooling period without formal registration.”

61. The respondent submitted that the Government’s Response to the Home Schooling Inquiry was a document adopted by the Premier expressing the government’s policy and therefore a document to which, by virtue of s 64(1) of the Administrative Decisions Review Act, the Tribunal must give effect. In the alternative, the respondent submitted that the document demonstrates that the policy stated in the Information Package has been “exposed to parliamentary scrutiny”.

62. In that regard the respondent relied upon the statement by Brennan J, as President of the Administrative Appeals Tribunal, in Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634 at 645:

When the tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the tribunal will ordinarily apply that policy in reviewing the decision unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny. [Emphasis added]

63. That statement sets out the policy that is adopted by the Administrative Appeals Tribunal in relation to the application of Ministerial policies. Elements of that statement have been given statutory force in s64 of the Administrative Decisions Review Act and, for that reason, the statement must be applied with caution in the exercise of this Tribunal’s administrative review functions.

64. The respondent submitted that:

“It is necessary for administrative workability that a particular minimum age be determined, so that a uniform approach can be taken by the ‘authorised persons’ empowered to make recommendations under s 71…Without a single age-based criterion to be applied in the assessment of applications for home schooling registration, the respondent’s ability to deal effectively with applications would be prejudiced.”

65. The respondent submitted that the selection of the age of 6 as a minimum age at which children may be registered for home schooling has a rational basis in that it is the compulsory school age under the Act.

66. In oral submissions Mr Birch expanded by submitting that the respondent’s concern is that it does not want to be left in a position where there is no objective standard by which the assessor might determine the age at which a child can be registered for home schooling. The respondent does not wish to be in a position where assessors are required to assess the educational capacity of very young children.

67. The respondent submitted that this rationale lies behind both the Information Package and the government response to the Select Committee.

68. Mr Birch pointed out that the operative effect of registration for home schooling under the Education Act was that by virtue of s 23(1) a parent of a child of compulsory school age does not commit an offence by failing to cause the child to be enrolled at and to attend a government school or a registered non-government school.

69. The respondent sought to distinguish the decisions in DMM v BOSTES and Education Standards Authority v DMM on the basis that the educational benefit of registration for home schooling in each of those cases was, in the former case (citing paragraphs [19] to [21] and [49] to [50]), “uncontested medical evidence that the registration as a home school student would be beneficial for [the relevant student’s] education, as the lack of official educational status was causing anxiety”, and that the benefit arising from registration in NSW Education Standards Authority v DMM involved “obtaining a concession relevant to securing admission to university”.

70. The respondent submitted that, although those specific educational benefits were found to be relevant to the decision whether or not to register [ER], the student the subject of the decisions in DMM v BOSTES and NSW Education Standards Authority v DMM, in this case the only alleged benefit to E is a financial benefit to the parent, which may or may not in individual cases have indirect benefits to the child’s schooling.

71. The respondent did not concede that the email the applicant had obtained from the Department of Human Services was a statement of Commonwealth Government policy or clear evidence that the registration of E for home schooling from February 2017 would be of benefit to E. Nevertheless the respondent further submitted that an assessor seeking to determine whether a child under the age of 6 should be registered for home schooling would not be in a position to know whether there would be any benefit to such a child being registered for home schooling as the assessor could not possibly be in a position to know whether any particular child would be eligible for Commonwealth benefits as a result.

72. The respondent submitted that the fact that there was a hypothetical benefit in some cases is not a relevant factor in all cases and does not outweigh the government policy by which the respondent submitted had been confirmed in the face of parliamentary scrutiny.

The applicant’s submissions in reply

73. In reply, Ms Gribble argued that, although it might be sensible to have a minimum age for home schooling, a minimum age of 6 is not warranted. She pointed out that children not being home schooled are not required to wait until the age of 6 to begin education. Ms Gribble suggested an objective minimum age could be fixed by reference to the age at which a child might be permitted to attend school.

74. Ms Gribble also submitted that the assessment of children under 6 for registration for home schooling would not add to the burden of an assessor as individual assessments are already carried out in order to determine whether the education proposed for a particular child would meet the appropriate educational standards.

75. Although she acknowledged that the assessors did not assess educational competency by speaking to the child directly to determine whether the child was ready for school, Ms Gribble nevertheless submitted that the assessors were required to assess every situation individually.

Consideration

76. As noted above, pursuant to s 108 of the Education Act, on an application for review of a recommendation to refuse registration for home schooling, the Tribunal may confirm the recommendation or make a different recommendation to the minister concerning the subject-matter of the application.

77. In ANC High School Pty Ltd v Board of Studies [2012] NSWADT 125 at [14] the Administrative Decisions Tribunal described the Tribunal’s role under s108 as:

“to conduct a merits review of the Board's recommendation or decision and decide what the "correct and preferable" recommendation or decision is having regard to the material before it at the hearing: ADT Act[1] , s 63(1) and (2). That is the Tribunal's role despite the fact that s 108 excludes the entirety of s 63 of the ADT Act. Section 108 sets out the orders which the Tribunal may make on review of a decision made under the Act and, to that extent, replaces s 63(3). By excluding s 63, we do not consider it to have been the intention of the legislature to change the nature of the Tribunal's role as set out in s 63(1) and (2).”

1. Administrative Decisions Tribunal Act 1997 (NSW), now the Administrative Decisions Review Act.

78. The Tribunal’s decision in that case was varied on appeal (Board of Studies v ANC High School Pty Ltd (GD) [2013] NSWADTAP 8), but the Appeal Panel did not dissent from the proposition set out. I approach the application for review on the basis that I am required to determine whether the decision to refuse to recommend registration for the relevant period was the correct and preferable decision.

Does s 71 preclude the registration for home schooling of a child under 6?

79. Although it is correct, as the respondent submits, that both DMM v BOSTES and NSW Education Standards Authority v DMM involved consideration of the upper age limit for registration of a child for home schooling, both decisions addressed the meaning of the word “child” in s 71 of the Education Act and rejected the submission that “child” meant a child of compulsory school-age.

80. That conclusion is explicit in paragraph [51] of the decision in DMM v BOSTES and it is clear that the Appeal Panel in NSW Education Standards Authority v DMM accepted that the decision in DMM v BOSTES was correct in determining that ‘child’ in s 71 means a person under the age of 18 and not a person of compulsory school age: see [57] to [58] and also [87] to [89] and [92] to [93].

81. I am bound to follow the decision of the Appeal Panel and, in any event, I consider that the conclusion is correct.

82. Once it is accepted that “child” in s 71 of the Education Act does not mean “child of compulsory school-age”, there is no basis to limit the meaning of the word to children above the age of 6. In my view, there is no statutory prohibition on the registration for home schooling of a child under 6.

Was the decision to refuse to recommend registration the correct and preferable decision?

83. I am not persuaded that the objects of the Education Act require the registration of any child of an age at which they would be permitted to attend school (government or non-government). I refer to what Senior Member Walker said in DMM v BOSTES at [32] as set out at [36] above.

84. At the same time, I do not consider that I am bound to apply a policy that children under 6 should not be registered for home schooling. I am not persuaded that the Government Response document relied upon by the respondent constituted a Government policy for the purposes of s 64 of the Administrative Decisions Review Act.

85. I am not persuaded that the Government Response to the Home Schooling Inquiry is a document adopted by the Premier expressing a policy that children younger than 6 years old are not to be eligible for registration for home schooling.

86. Sub-sections 64(2) and (3) of the Administrative Decisions Review Act make provision to facilitate proof that a particular policy was a Government policy, that is by a certificate signed by the Premier or any minister. Whilst a certificate from the Premier or a minister may not be necessary to prove that a policy is “Government policy”, in the absence of such a certificate, some other evidence would be required to establish that a policy is “Government policy” to which the Tribunal is required to give effect. See Whitehouse v Commissioner of Fair Trading [2017] NSWCATOD 108 at [39]. I do not consider that the covering letter to the Government Response to the Select Committee, signed by the former Premier, is sufficient to establish that the policy expressed in the Information Package that children will not be registered for home schooling before they turn 6, has been adopted by the Cabinet, or the Premier or a minister.

87. Nor do I consider that the Government Response document demonstrates that the policy has been exposed to parliamentary scrutiny. In my view the form of scrutiny referred to by Brennan J in Drake is the form of scrutiny which arises where a formally promulgated policy is reviewed and approved (or not disallowed) by the Parliament not, as in this case, where a Parliamentary Select Committee in fact suggested that the relevant policy be changed. (See Drake at 643-644.)

88. In any event, as noted above, s 64 of the Administrative Decisions Review Act sets out specific rules for the Tribunal relating to the weight to be given to Government policy. In light of that provision I am not persuaded that “parliamentary scrutiny” of any policy would add to the significance of that policy in the process of review by this Tribunal. Section 64 has given particular significance to policies adopted by the Cabinet, or the Premier or a minister, and lesser significance to other policies applied by administrators. It is not clear to me that there is room in that context for greater deference by the Tribunal to a policy which has been the subject of “parliamentary scrutiny”.

89. I accept that the Information Package does state a policy adopted by the respondent to which I may have regard unless it is contrary to Government policy or to law or it produces an unjust decision in the circumstances of this case. I also accept that that policy is reflected in the Government Response document although not explicitly stated in that document.

90. I am not persuaded that the registration of E for home schooling was required in order that the respondent comply with its obligation to “facilitate the best education outcomes for children”, generally or for E in particular.

91. I consider that the DMM decisions establish that the respondent can, and should, take into account factors beyond the questions whether the proposed home schooling is appropriate and whether the registration is necessary in order to excuse the child from compulsory school attendance. Such further factors would include “any indirect benefits arising from registration”. I refer to the passages set out at [40] and [41] above.

92. I accept that the concerns expressed by the respondent, about the absence of an objective lower age limit for registration and the possibility that the rejection of a blanket policy might lead to assessors being obliged to assess the readiness for formal schooling of very young children, have substance. I accept that the respondent is entitled to take into account the resource implications of assessors being required to undertake the assessment for home schooling of an unknown number of young children who are not of compulsory school-age and therefore do not require registration in order that their parents are not obliged to send them to school.

93. However, I am not convinced that those concerns necessitate the blanket policy applied in this case.

94. E was assessed for home schooling in February 2017 because he was about to turn 6. The assessor apparently had no concerns about the appropriateness of the home schooling programme and resources proposed by the applicant. It is apparent that E was undertaking home schooling at the time of the assessment. The assessor recommended the registration of E for home schooling from the date of his 6th birthday.

95. In my view the considerations raised by the respondent (referred to at [91] above) were not relevant to the decision of the assessor in this case not to recommend registration from the date of the assessment.

96. The respondent did not seek to suggest that any additional assessment would have been required.

97. The consequence of a decision that the respondent recommend registration of E from the date of assessment would not be that the respondent would have to undertake assessment of any child in respect of whom an application was submitted, no matter how young the child. Although s71(2) of the Education Act does require that the Minister obtain advice on an application for registration of a child for home schooling “as soon as practicable after such an application is made”, it is at least arguable that an authorised person may recommend refusal of an application in respect of a child who is not about to reach compulsory school-age without undertaking a specific assessment of that child or the proposed educational programme. That question does not arise in this case and was not the subject of argument before me. It is not appropriate that I express any firm opinion on that issue.

98. In this case the respondent, at the applicant’s request, undertook an assessment of E at the commencement of the year in which he was about to turn 6 and his compulsory schooling was to begin. The assessor having undertaken that assessment concluded that the educational programme proposed by the applicant was appropriate. In my view the correct and preferable decision was that the registration of E for home schooling be recommended from the date of the assessment.

99. I accept that there is some force in the respondent’s submission that the suggested benefit of the earlier registration of E for home schooling is indirect and uncertain. Nevertheless, I do not accept that a recommendation as sought by the applicant would be futile. There is some prospect that registration of E for home schooling from the date of the assessment would have a benefit for E. In light of the absence of substantial detriment to the respondent from a recommendation that registration take effect from the date of assessment, I will recommend to the Minister that E be registered for home schooling pursuant to s 71 of the Education Act from 15 February 2017 until his 6th birthday.

Orders   

1. The Tribunal makes a different recommendation to the Minister, namely, that E be registered for home schooling from 15 February 2017 to the day before his sixth birthday inclusive.

2. Pursuant to s 64 of the Civil and Administrative Tribunal Act the name of the applicant and the child concerned are not to be published to any person other than the parties and their representatives and the Minister for Education.

Endnote

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 28 February 2018