DMM v Board of Studies, Teaching and Educational Standards (No. 2)

[2016] NSWCATAD 260

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DMM v Board of Studies, Teaching and Educational Standards (No. 2) [2016] NSWCATAD 260
Hearing dates:	9 November 2016
Date of orders:	18 November 2016
Decision date:	18 November 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Prof G Walker, Senior Member
Decision:	(1) Instead of the recommendation of the Board of Studies, Teaching and Educational Standards that DMM be refused home schooling registration under ss 71 and 72 of the Act for ER, the tribunal makes the following recommendation: That ER be registered as a home schooling student. (2) Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013, (i) the names of the applicant and of the child concerned and (ii) the contents of paragraphs 43, 44, 47 and 48 below are not to be published. Note: A reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.
Catchwords:	EDUCATION – home schooling – registration – whether person over 18 eligible if under 18 at the time of application – statutory interpretation. WORDS AND PHRASES – “child”.
Legislation Cited:	Civil and Administrative Tribunal Act 2013; Education Act 1990 Interpretation Act 1987
Cases Cited:	Amalgamated Society of Engineers v Adelaide Steamship Co. Ltd [1920] HCA 54; (1920) 28 CLR 129; ANC High School Pty Ltd v Board of Studies [2012] NSWADT 125; Australian Education Union v Department of Education and Children’s Services [2012] HCA 3; (2012) 248 CLR 1; McDonald v Director-General of Social Security [1984] FCA 57; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664.
Category:	Principal judgment
Parties:	DMM (Applicant) Board of Studies, Teaching and Educational Standards (Respondent)
Representation:	Counsel: P Herzfeld (Respondent)   Solicitors: DMM (Applicant in person) Crown Solicitor’s Office (Respondent)
File Number(s):	1610465
Publication restriction:	See order 2

REASONS FOR DECISION

1. This case concerns an application to the Board of Studies, Teaching and Educational Standards (sometimes referred to as BoSTES) for a recommendation to the Minister for Education to register the applicant’s adopted child as a home schooling student under the Education Act 1990 (the Act) (these reasons will henceforth omit the word “adopted”). As the proceeding deals in part with medical and psychological matters concerning a person with a disability who, like her family, could be readily identified, to her possible detriment, orders were made under s 64 of the Civil and Administrative Tribunal Act 2013 (CAT Act) to anonymize their names and to prohibit publication of certain paragraphs in these reasons. The applicant will therefore be referred to as DMM and the child as ER.

2. The applicant applied to this Tribunal on 29 July 2016 for review of a decision by an authorized person to recommend to the minister that registration of the applicant’s daughter for home schooling pursuant to s 72 of the Act be refused. The Tribunal has the power to review such a recommendation pursuant to s 107(1)(d) of the Act.

3. ER’s status as a home schooling student was the subject of earlier proceedings in this tribunal that were decided on 25 February 2016 (DMM v Board of Studies, Teaching and Educational Standards [2016] NSWCATAD 38), in which I held that she was entitled to be enrolled, notwithstanding that she had passed the age of compulsory schooling. She is now aged 18. Apart from the fact that as a result of that decision she was registered as a home schooling student for the three months before she turned 18, there has been no material change in the facts since that earlier decision.

Applicable legislation

4. Sections 71 and 72 of the Act 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.

5. Also relevant are parts of ss 34 and 47. Section 34 deals with admission to government schools. It provides in pertinent part that:

(1) The parent of a child may enrol the child at any government school if the child is eligible to attend the school and the school can accommodate the child….

(7) Nothing in this Part prevents the principal of a government school from accepting an application for the enrolment of an adult at that school for the purposes of receiving instruction.

6. Section 47 deals with the registration requirements for non-government schools. Relevantly it provides:

For the purposes of this Act, the requirements for the registration of a non-government school are as follows: …

(g)  a safe and supportive environment is provided for students by means that include:

(i)  school policies and procedures that make provision for the welfare of students, and

(ii) persons who are employed at the school being employed in accordance with Part 2 of the Child Protection (Working with Children) Act 2012, and

(iii) school policies and procedures that ensure compliance with relevant notification requirements imposed in relation to persons employed at the school by Part 3A of the Ombudsman Act 1974 and the Child Protection (Working with Children) Act 2012, and

(iv)  maintaining a student enrolment and attendance register,

(h)  school policies relating to discipline of students attending the school are based on principles of procedural fairness, and do not permit corporal punishment of students,

(i)  if the school provides boarding facilities, whether itself or by contractual arrangement—school policies and procedures that are satisfactory to ensure the safety and welfare of boarders,

(j)  compliance with the requirements set out in Part 3 relating to:

(i)  in the case of a school providing primary education—the minimum curriculum for a school providing primary education, or

(ii)  in the case of a school providing secondary education for children during Year 7 to Year 10—the minimum curriculum for a school providing any such secondary education, or

(iii)  in the case of a school providing secondary education for children during Year 11 and Year 12—the curriculum for students who are candidates for the Higher School Certificate, …

7. The reason for the authorized person’s recommendation against registering ER for home schooling was that she had turned 18. The authorized person considered that the references to a “child” in ss 71 and 72 were to be understood as referring to a person less than 18 years of age. In the earlier proceedings the issue was whether a person aged over the compulsory schooling age (17 in New South Wales, subject to exceptions relating to post-school training) could be registered for home schooling. It was assumed that such registration would terminate when the pupil turned 18, but the point was not fully argued and was not necessary for the decision. It can therefore be treated as still open for debate. The issue in these proceedings is thus whether or not ER can be registered for home schooling under ss 71 and 71, notwithstanding that she is now aged 18.

Applicant’s submissions

8. As in the earlier proceedings, the applicant presented detailed written submissions. After outlining the facts and the history of the case (none of which is disputed), the applicant put forward a number of lines of argument as reasons why the word “child” in ss 71 and 72 should not be construed as confined to persons under 18. Her points may be summarized as follows.

9. First, DMM submitted that the meaning of “child” within the Act clearly includes people aged over 18. In seven places in s 20, six in s 21 and two in s 47 the word includes students over 18. For example, s 47 discusses the provision of secondary education to children during years 11 and 12. As most school pupils have attained 18 years by the end of year 12, that reference to children must also include students who are 18 or older. The same is true in other legislation, such as s 5 of the Social Security Act 1991 (Cth).

10. In reality the Act appears to use the word “child” in two ways. The first is to describe the relationship necessary in order for an individual to enrol a student in school, or register a student for home schooling. That was reflected in the fact that the Act provides a definition of “parent” in relation to “child” in stating that “parent includes a guardian or other person having the custody or care of a child”. The second use of “child” is simply another way of referring to a “student”. Neither of those uses precludes the understanding that a “child” under the Act may be a person who has attained majority and neither precludes the continuing school enrolment or home schooling registration of a student who has attained majority.

11. Secondly, the New South Wales Department of Education continues the enrolment of students who attain 18 years of age and does not treat them as “adult enrolments”. Section 34(7) permits government schools to accept the enrolment of adults. Large numbers of school pupils are 18 or older. But the department does not rely on s 34(7) in order to facilitate the education of continuing students who are 18 or older in government schools. Rather it distinguishes between continuing students who turn 18 while enrolled, and individuals who have left school at some time in the past and are seeking to re-enrol in school. Continuing students continue to be considered as enrolled under s 34(1) under the enrolment that their parent facilitated as described in the Act, “The parent of a child may enrol the child at any government school”. It is only students who have left school and are seeking to return as adults who are considered by the department to be “adult students” under s 34(7). The similarity of the wording between ss 34(1) and 71(1) suggests that continuing institutionally schooled students and continuing home schooled students who attain majority should be treated similarly. If the enrolment of school students can continue beyond the 18th birthday, then the registration of home schooled students should also be able to be continued past the 18th birthday.

12. Conversely, if “child” is to be defined as a person under 18 in relation to home schooling registration, the same should apply in relation to school enrolment. Thus the enrolment of school students who attain 18 should cease on their achievement of majority and they should need to re-enrol as adult students. That does not occur. DMM submitted that a continuing home schooled student who attains 18 should not be considered to be an adult student under s 34(7), any more than a continuing institutionally schooled student is considered to be an adult student. Both home schooled and institutionally schooled students should be able to continue their schooling past their 18th birthday.

13. Thirdly, the Act treats government schooling, non-government schooling and home schooling as equal options for the education of students in New South Wales. That is clear from ss 5 and 22. Further, home schooling and the registration of non-government schools are dealt with together in part 7 of the Act. That the three forms of schooling are considered to be equal in the Act is reflected in the parliamentary debates, as several extracts from various members’ speeches indicate. If the parliament had intended that the cut-off for schooling for home schooled students was 18, but that was not the case for institutionally schooled students, it would have been discussed in the parliamentary debates concerning the Act and the Education Amendment Bill 2009. Instead, the debates made it clear that continuing education to year 12 completion is the goal for all young people in New South Wales and that promoting educational excellence, education choice and flexibility in the provision of education is the intent of the Act. Whereas at the time the Act was introduced, home schooling was a marginalized form of education, the Act treats it equally with government and non-government schools as a way of meeting the compulsory school attendance requirements. The Legislature made a deliberate decision to change the status of home schooling from a marginalized activity that was treated simply as a means of exempting a child from school attendance to a form of education considered equal to government and non-government schooling. There was no suggestion that the duration of home schooling should be truncated so that it could occur only until a student attained 18 years. Rather the goal was to encourage students to continue their education until they completed year 12.

14. Fourthly, BoSTES has an obligation to administer the Act in such a way as to facilitate the best educational outcomes for children and young people. The objects for the administration of the Act or of education set out in s 6 are that they should seek to assist each child to achieve their educational potential, mitigate educational disadvantage as a result of the child or young person’s background and to provide special educational assistance to children or young people with disabilities.

15. These objects apply to home schooling parents as deliverers of education. For that reason BoSTES rightly requires applicants for home schooling to provide an education that is designed to meet the education needs of their child or young person and to mitigate educational disadvantages. Those objects also apply to the respondent, whose refusal to register ER for home schooling denies her recognition of her status as a student and so limits her access to educational resources. Accessing opportunities such as theatre performances, and other goods and services, is more expensive or impossible as a direct result of BoSTES’s refusal. It has also had a negative impact on her learning by increasing her stress and anxiety, thereby making it more difficult for her to learn. It may prevent her from being able to access the university course of her choice by preventing her access to bonus ATAR points that would otherwise be available to her. The respondent should also consider that students with a disability are over-represented among home schooled students. To truncate the education of home schooled students but not institutionally schooled students is indirect disability discrimination. Overturning the respondent’s decision is highly unlikely to open the door to a flood of new applications. Only those parents whose application has merit and whose children genuinely need access to the educational resources and opportunities involved would be motivated to apply.

16. Fifthly, continuing the registration of home schooling students past their 18th birthday, so that they can complete year 12, is fundamentally different from registration of adult students who are beyond the normal age of schooling. It is not a case of a parent seeking to register a long out-of-school adult who would gain no obvious benefit from home schooling registration. It is rather a parent seeking to register a newly adult, yet still financially, emotionally and physically dependent child who has been continuously registered for home schooling since six years of age and who merely wishes to complete her year 12 schooling as a home schooling student.

17. At the hearing the applicant reiterated those points and further submitted inter alia that the respondent acknowledged that in certain contexts the Act uses the word “child” to refer to a school pupil aged 18 years, such as s 47(j)(iii), but discounted in the context of s 71(1) the fact that some home schooled students would not have completed their secondary studies by the age of 18. Section 123(3) which, the respondent argues, means that a child must be aged under 18, but that provision relates only to compulsory schooling.

18. ER turned 18 on … August 2016, and the internal review was decided when she was still 17. She was thus a minor when DMM applied to register her for home schooling. The application could have been processed before ER turned 18, as it was filed three months early.

19. Registering ER would not be onerous; the earlier decision had found that registering her after the compulsory schooling age imposed no burdens on the department or any disadvantages on other pupils. It had to be borne in mind that about half of all home schooling students were under a disability. Further, while school enrolment was on a continuing basis after year 11, home schooling registration was only for a maximum of two years. The years 11 and 12 curriculum for Illawarra Senior College (exhibit A2) stated that the institution “provides opportunities for mature age, re-entry, part-time and full-time continuing students to study for their HSC or other credentials, and gain training and skills at the same time”. As the college thus accepted many mature age students, they must have been enrolling pupils over 18 before s 34(7) was added for the purposes of clarification only. It was not an enabling provision. Section 34(1) is there to show who can enrol a child. It was wrong to suggest that reading ss 71 and 72 to include persons over 18 could lead to absurd results, as the department had always had policies about who could be denied enrolment, such as persons with criminal records. Corresponding policies could be adopted in the present context.

20. The respondent had contended that home schooling was not in all respects treated in the same way as government and non-government schooling. For example, the Higher School Certificate could not be undertaken through home schooling. The authorized person report showed, however, that ER is undertaking the same program as pupils enrolled at school, except that the method of assessment is different, so as to reflect competition among students in schools. Further, there are several other university entry methods available to home-schooled pupils, such as the International Baccalaureate and the ATAR channel. Denying ER registration limits her educational options in a manner inconsistent with the objects of the legislation, as she cannot qualify for ATAR bonus points that would otherwise be available for country students in her area.

8. In reply the applicant added that the advantages available to registered students were not limited to resources available under the Act. The whole package of other benefits, such as OPAL card discounts and discounted theatre admissions, that would be available to ER would also serve to promote the objects of the Act.

9. The applicant was not arguing that every use of the word “child” in the Act included adults. Generally the word is used to mean children under 18, but the fact remained that some pupils were older and had not completed their schooling. There would usually be no additional workload imposed on the respondent by granting registration, as it would simply be a matter of using a different date. Interpreting ss 71 and 72 in the way advocated by the respondent would mean that the majority of home schooled students would not be able to complete their secondary education as registered home schoolers. The legislation gives no power to the respondent or the minister to waive any of the statutory requirements.

10. The situation was analogous to that of private schools, which had to be re-registered every five years. Registration is valuable in itself for the home schooled student because it provides proof that he or she is actually in the education system.

Respondent’s submissions

24. After outlining the usual principles of legal construction, the respondent’s written submissions pointed out inter alia that the word “child” is capable of bearing two different interpretations. The first is that it refers to a person who is not an adult, meaning a person under 18 years of age. The second is that it refers to a person who is the offspring (or adopted child) of another, regardless of age. Which one is correct in a given statutory context is a matter of construction, and the respondent contended that in the context of ss 71 and 72 it means a person under 18, for several reasons.

25. The first is that in many provisions throughout the Act, the word “child” is used on its own, not by reference to the relationship of parent and child. In that usage, it is not generally apt to refer merely to a person who is the offspring or adopted child of another. It is not generally apt to refer to an “adult child”.

26. Secondly, in s 34 the word “child” is used in contradistinction to “adult”, even where the word “child” is used in combination with the word “parent”, as in s 34(1) and (7). Section 34(7) was inserted in 2008, but no such insertion was made to ss 71 and 72. The latter sections are the functional equivalents, for home schooling, of s 34 for enrolment at a government school. The fact that express provision was made for adults to enrol at government schools but, at the same time, no express provision was made for adults to be registered for home schooling, strongly suggests that the latter was not intended. The respondent did not suggest that s 34(7) was necessary to deal with a person who, at the time of enrolment, is under 18 but who turns 18 before the end of the year. Section 34 speaks to the time of enrolment, and is therefore not directed to that circumstance. Section 34(7) applies to a prospective pupil over the age of 18 at the time of enrolment. The same is so for a parent who seeks to register a person for home schooling who is over 18 at the time the registration falls to be considered.

27. Thirdly, s 123(3) of the Act also uses the word “child” to refer to a person who is not an adult. It provides that in any proceedings under the Act, “(a) the court may take judicial notice of the apparent age of a child, and (b) a child apparently of or above the age of 6 and below the age of 17 is to be presumed to be so until the court is satisfied to the contrary.” It would be very surprising if the court was authorized to take judicial notice of the apparent age of an adult.

28. Fourthly, in part 5A (dealing with health and safety matters), where it is intended to refer to a person over the age of 18, the word “student” is used rather than the word “child”. Thus, s 26A defines “student” to include “(a) a student who is above the age of 18 years….” While the word “student” is used elsewhere in the Act without such precision, s 26A tends against the applicant’s proposition that “child” is used interchangeably in the Act with “student”.

29. Fifthly, given that a person over 18 has full legal capacity, it would be odd for s 71(1) to permit registration for home schooling only on the application of the person’s parent. One would expect that the Act would make provision for such persons themselves to apply.

30. Sixthly, in the earlier proceedings the tribunal accepted the construction advanced by the respondent. The respondent agreed, however, that the point was not directly in issue in those proceedings and was not fully argued.

31. The respondent accepted that in certain limited provisions of the Act, the word “child” is used to refer to a pupil aged 18, such as in s 47(j)(iii), but that instance is best understood as a departure from the general scheme of the Act, required by the particular context of the word “children” in s 47(j)(iii). Nothing in ss 71 and 72 provided any equivalent particular context. Further, it is not possible to complete the Higher School Certificate – the course of study contemplated by the Act to be undertaken by pupils who might be expected to turn 18 during year 12 – through home schooling.

32. Turning to the applicant’s submissions, the respondent submitted that ER’s circumstances did not engage with the matters of statutory construction referred to. In any event, even if the applicant could not register ER for home schooling, that did not preclude ER from completing the course of study she prefers. The fact that external bodies might treat registration as a significant matter could not bear on the proper construction of the Act. Home schooling was not treated in all respects in the same way as government and non-government schooling and the tribunal should not proceed from an a priori assumption that the Act aims to treat home schooling as identical with school instruction in all respects.

33. Next, there was no reason to construe the references to “children” in ss 20 and 21 as referring to persons over 18, nor could express definitions of “child” in other legislation bear on the construction of that word in the Act. Further, the fact that ss 71 and 72 do not expressly prescribe a maximum age for registration for home schooling did not answer the present point. If “child” were construed in the manner for which the respondent contends, those sections effectively do prescribe such a maximum age.

34. Further, the manner in which the Act is administered could not bear on its proper construction, and the absence in second reading speeches of any subjective intention on the part of legislators that the word “child” should mean a person aged under 18 was of no significance.

35. At the hearing the respondent reiterated those points and stressed that the application was for renewal of registration commencing after ER had turned 18. Consequently there was no analogy to school enrolment continuing after the pupil turned 18; the proper analogy was to enrolment commencing after age 18. Section 34 distinguished between children and adults and was the functional equivalent of ss 71 and 72. It was directed to the time of enrolment. Section 34(7) applied only to a person seeking to enrol who was an adult at the time of enrolment. It did not deal with students turning 18 during year 12 or with pupils enrolling at the age of 17½.

36. Section 71 permits home schooling applications only by a parent. If adults could be registered for home schooling, s 71 would provide for adults to register themselves. That was what one found in s 34 in relation to schools. The applicant’s interpretation could lead to the absurd results hypothesized in the earlier decision. The applicant’s arguments about the purpose of the Act to mainstream home schooling was irrelevant, as the present case was solely about registration, not about home schooling as such.

37. The respondent was not suggesting that there would be a floodgates problem if the applicant’s construction were adopted, although the additional time that might be taken could have an impact on the processing of other applications. The differences in the registration schemes between institutional schooling and home schooling, such as the unavailability of the HSC for home-schoolers, were significant, but registration of a home schooling student aged 18 or more would have no consequences under the Act. Further, under s 73(3), registration for home schooling was for a period not exceeding two years, whereas it was not necessary to re-enrol at a government or non-government school. The deputy director-general’s memorandum about the enrolment of adults in government schools dated 15 September 2009 did not assist the applicant’s case, and indeed suggested that any person over 18 was treated as an adult and could not be categorized as a “child”.

38. If the legislation had intended to permit home schooling registration at any age, it would have said “person”, not “child”. The applicant was seeking to avoid the plain meaning of the provisions. If ER might potentially lose benefits conferred by external bodies, the proper course was to approach those other bodies to seek to have them change their policies.

Consideration

39. The tribunal’s review powers as regards the present application are set out in s 108 of the Education Act and apply to the exclusion of the powers conferred on the tribunal under s 63 of the Administrative Decisions Review Act 1997 (ADR Act). In relation to the decision to recommend refusal of the application for home schooling registration, the tribunal may confirm the recommendation, set it aside or make a different recommendation to the minister concerning the subject-matter of the application: s 108(1)(b).

40. The tribunal’s role is to conduct a merits review of the board’s recommendation and to decide what the “correct and preferable” recommendation or decision is, having regard to the material before it at the hearing: ADT Act, s 63(1) and (2). That is so notwithstanding that s 108 excludes the entirety of s 63 of the ADT Act. Section 108 sets out the orders that the tribunal may make on review of a decision made under the Act and, to that extent, replaces s 63(3). The exclusion of s 63 it is not considered to have been intended to change the nature of the tribunal’s role as set out in s 63(1) and (2): ANC High School Pty Ltd v Board of Studies [2012] NSWADT 125.

41. In proceedings for the merits review of an administrative decision, there is no onus of proof on either party: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354. Instead, the tribunal “stands in the shoes” of the decision-maker and is able to inform itself on any matter in such manner as it thinks fit: ADT Act, s 73(2). In the present case no oral evidence was adduced and the facts were not in dispute. The parties relied on documentary evidence which was also not in dispute, except that the respondent reserved the right to challenge the relevance to the point of statutory interpretation in issue of some of the background material contained in the applicant’s tendered documents. That point, of course, is whether the word “child” in ss 71 and 72 includes a person over the age of 18 and, if not, whether an application to register such a person for home schooling would be valid. This appears to be a case of first impression.

42. The relevant facts and circumstances are that ER was born outside Australia, and while her exact date of birth is uncertain, it is thought to have been … August 1998.

43. [not for publication]

44. [not for publication]

45. The maximum permissible period of registration, two years, was granted on 15 February 2005 and renewed four times, the final period being truncated by three days because ER was to turn 17. The earlier proceedings in this tribunal extended that period to … August 2016, when she was to turn 18

46. ER has progressed well in the home schooling program and has earned TAFE College qualifications in land management and conservation and laboratory techniques. She is in the process of completing a level 3 TAFE certification in personal care and disability. She has a realistic aspiration to undertake a university course in an area of the health sciences that would enable her to help others as she has been helped.

47. [not for publication].

48. [not for publication]

49. The word “child” is not defined in the Act. Further, the Minors (Property and Contracts) Act 1970 s 9 is not a general definition of the word for legal purposes. Its meaning is therefore to be determined in accordance with the ordinary principles of construction. There are several possible, and to an extent competing, approaches to the construction of ss 71(1) and 72. As I stated in the earlier proceedings, the starting point for all statutory interpretation is usually taken to be the literal, or plain meaning, rule. That principle was clearly enunciated by Higgins J in Amalgamated Society of Engineers v Adelaide Steamship Co. Ltd (1920) 28 CLR 129, 161:

The fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded according to the intent of the Parliament that made it; and that intention has to be found by an examination of the language used in the statute as a whole. The question is, what does the language mean; and when we find what the language means in its ordinary and natural sense, it is our duty to obey that meaning, even if we think the result to be inconvenient, impolitic or improbable.

50. As can be seen, the literal rule requires the court or tribunal to examine the language of the statute as a whole, but contemporary practice places greater emphasis on construction of the enactment as a whole, together with contextual matters such as legislative history and extrinsic materials. In Thiess v Collector of Customs (2014) 250 CLR 664, 671 – 672, [22] – [23] the High Court has said (omitting references):

Statutory construction involves attribution of meaning to statutory text. As recently reiterated:

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Objective discernment of statutory purpose is integral to contextual construction. The requirement of s 15AA of the Acts Interpretation Act 1901 (Cth) that “the interpretation that would best achieve the purpose or object of [an] Act (whether or not that purpose or object is expressly stated… is to be preferred to each other interpretation” is in that respect a particular statutory reflection of a general systemic principle. For:

“it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning”.

51. In a much-cited earlier passage, the Court had said in Project Blue Sky that:

The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”….[T]he process of construction must always begin by examining the context of the provision that is being construed.

Ordinarily… the legal meaning… will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.

52. Nevertheless, “it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose”: Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1, 14 [28].

53. The contemporary approach is given statutory force in New South Wales by ss 33 and 34 of the Interpretation Act 1987. Section 33 states that a construction that would promote the purpose or object underlying an Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to a construction that would not promote that purpose or object, while s 34 permits the use of extrinsic materials to confirm that the meaning of the provision is the ordinary meaning conveyed by the text, or to determine the meaning of the provision if it is ambiguous or obscure or if the ordinary meaning conveyed by the text leads to a result that is manifestly absurd or unreasonable.

54. The word “child” is not defined in the Act. The applicant submits that in some contexts the word is used in a relational sense, to describe the relationship necessary in order for an individual to enrol a pupil in school or register a pupil for home schooling (presumably referring to s 34(1) and s 71(1)). That, it was submitted, was reflected in the fact that the Act provides a definition of “parent” in relation to “child” in stating (in s 3(1)) that “parent includes a guardian or other person having the custody or care of a child”. But the definition of “parent” and the requirement of that relationship to the child does not entail a meaning of the word “child” that is different from its ordinary meaning.

55. In many places throughout the Act, the word “child” is used on its own, not by reference to a relationship, as for instance in ss 5(d), 8(1)(a), 10(1)(a), 14(3), 16, 17(1) and 18(1). Some uses obviously relate to persons under 18, such as s 8(1)’s reference to children in kindergarten programs. In some instances, it seems to be employed as a synonym for “student”. Thus, s 47(j)(iii) refers to “children” during years 11 and 12 preparing for the HSC, many of whom will be over 18. In the same section, s 47(g) refers to the provision of a safe and supportive environment for “students”. There appears to be no reason for any difference in treatment between the two paragraphs, and the two terms seem there to be used as synonyms.

56. The applicant submitted that in some cases, such as ss 20 and 21 (now s 83B), the word “children” must include adults. I agree, however, with the respondent’s contention that there is no reason why the references to “children” in those sections should be construed to refer to persons over 18. Nor does the fact that the Act imposes no age limit on home schooling help the applicant’s case. As the respondent pointed out, the interpretation of ss 71 and 72 that the respondent favours would mean that there is in fact an age limit.

57. I therefore conclude that the plain meaning of the word “child”, as referring to a person under 18, is the one intended by the Legislature in the language of ss 71 and 72. The fact that such is the natural meaning of the word was the reason why the obiter dicta in the earlier decision proceeded on that basis.

58. But if one construes the Act as a whole, as one should, that conclusion is not fatal to the applicant’s case. As the respondent observed, s 34 is the functional equivalent of ss 71 and 72. Both deal with the manner in which a pupil enters the education system. Under s 34, the standard method is for a parent to enrol the child in a government school (leaving aside the enrolment of adults under s 34(7)).

59. But that method is not available under the equivalent provisions for home schooling. For good reasons, approval of home schooling cannot be a simple routine process. The procedure (simplifying slightly) is that (1) a parent applies for registration of the child for home schooling, then (2) an authorized person recommends to the minister that the child be registered for home schooling or that registration should be refused, then (3) the minister is to register the child, having regard to the recommendation and any decision of this tribunal, if he or she is satisfied that the conditions subject to which registration is required will be complied with.

52. As the respondent also pointed out, s 34 speaks to the time of enrolment, which is why there is no problem in continuing the year 12 enrolment of school students who turn 18 before completing the HSC.

53. Sections 71 and 72, being the functional equivalent of s 34 in the context of home schooling, speak as at the time of the step corresponding to enrolment, which is the parent’s application to register the child. Therefore, provided that the student is under the age of 18 at the time of the application and at the time the minister makes his or her decision, he or she may be registered for home schooling for a period of up to 2 years (s 73(3)). Beyond that time registration will not be possible, and that makes the provision self-limiting.

54. In the present case DMM’s home schooling renewal application for ER was lodged on 5 May 2016 and the recommendation that registration be refused was issued on 18 May 2016. DMM requested an internal review on 25 May 2016, and that review was decided, against the applicant, on 14 July 2016. As the applicant pointed out, all of those steps antedate ER’s 18th birthday on … August 2016 and she could have received registration while still a minor. DMM submitted that, given the similarity of language between s 34 and ss 71 and 72, continuing school students and continuing home schooled students should as far as possible be treated equally.

55. True it is that in this case the whole 2-year registration period would run after ER has turned 18, which is different from the position of high school students who turn 18 during year 12, but that constitutes no legal obstacle. And, in practice, it would serve the same purpose of maintaining educational continuity. The respondent also very properly acknowledged that permitting the registration of students in ER’s position would not create a floodgates problem, impose a substantially increased workload on the board or prejudice any other pupil.

56. It is notable that among the principal objects of the Act as set out in s 5 is “to allow children to be educated at home”. (The legislative history of that statutory policy was discussed in the earlier proceedings (at [45])). 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”.

57. Section 6 has a bearing on the construction of ss 71 and 72. Its provisions 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 a construction that will more broadly promote those objects, rather than one that attributes an exclusionary or limiting character to ss 71 and 72.

58. The respondent submitted that registering ER in itself would have no consequences 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 the three months during which ER was registered for home schooling this year made a big difference. She was able to be recognized as a student, to obtain a student travel concession card and OPAL card. She was able to obtain student discounts to theatre performances. She was able to tell people who asked her what she was doing that she was continuing to be home schooled. That benefited her emotional well-being.

59. Since turning 18, however, ER feels that she is once again in a no man’s land. Her parents tell her she is a student, but the government does not consider her to be one, and because the government does not, other organizations and individuals do not either. That lack of recognition places unnecessary pressure on her as well as depriving her of support that is available to other students. It exacerbates her anxiety, adds to her already complex work of identity development and so makes it more difficult for her to learn. The reports from her treating doctor, and especially from the clinical psychologist, confirm those observations and strongly support her mother’s efforts to renew her registration. While such considerations do not have a direct bearing on the construction of statutory provisions, they have an indirect relevance here through the operation of ss 5 and 6.

60. While I have concluded that ER is no longer a “child” for the purposes of ss 71 and 72, I find that on the facts of this case she is not thereby precluded from being registered as a home schooling student under those provisions. A recommendation to the Minister for Education should therefore be made that ER be registered as a home schooling student.

Orders

1. Instead of the recommendation of the Board of Studies, Teaching and Educational Standards that DMM be refused home schooling registration under ss 71 and 72 of the Act for ER, the tribunal makes the following recommendation: That ER be registered as a home schooling student.

2. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013, (i) the names of the applicant and of the child concerned and (ii) the contents of paragraphs 43, 44, 47 and 48 below are not to be published. Note: A reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

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: 18 November 2016