Ford and Net Grammar School Pty Ltd v Board of Studies
[1999] NSWADT 47
•30 June 1999
CITATION: Ford and Net Grammar School Pty Ltd -v- Board of Studies [1999] NSWADT 47 DIVISION: General APPLICANT: Judith Ford and Net Grammar School Pty Ltd RESPONDENT: The General Manager, Office of the Board of Studies FILE NUMBER: 993011 HEARING DATES: 04/16/1999 SUBMISSIONS CLOSED: 04/28/1999 DATE OF DECISION: 30 June 1999 BEFORE:
K P O'Connor DCJ - President
J M Riordan - Member
K L McCredie - MemberPRIMARY LEGISLATION: Education Act 1990 APPLICATION: Review of decision to recommend refusal of registration of non-government school - MATTER FOR DECISION: Jurisdiction REPRESENTATION: Applicant:
Respondent:
N Hufton, solicitor, Slade Manwaring Solicitors
P Singleton, solicitor advocate instructed by Crown SolicitorORDERS: 1 the Tribunal makes the following recommendation to the Minister:
that the Minister direct the Board -
* to proceed to consider the application fully in accordance with Division 3 of Part 7 of the Act
* to make a recommendation in relation to the application for registration pursuant to s.51 within 30 days
* to provide the applicant with a statement of reasons as to the extent to which the application satisfies or fails to satisfy the criteria for registration prescribed by s.47 of the Act
* then to proceed expeditiously if registration is granted to deal with the application for accreditation to present candidates for the Higher School Certificate.
1 This is an application for review made pursuant to Part 3 of the Administrative Decisions Tribunal Act 1997 (‘the Tribunal Act’).2 The application seeks review of the decisions of an administrator, the Board of Studies (‘the Board’), in relation to an application for initial registration of a proposed non-government school and the accreditation of that proposed school to accredit it for the purpose of presenting candidates for the Higher School Certificate (‘HSC’).
3 The applicants named in the application for review filed on 16 January 1999 were Dr Chris Bertinshaw, Chairman of the Board of Directors of Net Grammar School Pty Ltd, and Net Grammar School Pty Ltd itself. At hearing on 16 April 1999 leave was given to substitute for the first applicant Ms Judith Ford, also a Director and the proposed principal. The original applications to the Board dated 18 June 1998 had been made by Ms Judith Ford, as the proposed principal, on behalf of Net Grammar School Pty Ltd. (As Ms Ford and Net Grammar School Pty Ltd has the same interest in the proceedings, for convenience they will be referred to below as ‘the applicant’.)
4 The respondent is the Board, a body constituted under the Act. The Board is generally responsible for making recommendations to the Minister for Education (‘the Minister’) in relation to school registration applications (Act, Part 7) and for making decisions in relation to the accreditation of non-government schools to present candidates for the School Certificate and the HSC. A school seeking accreditation must be a registered school: Act, s.85(1). The application for registration and the application for accreditation are usually dealt with in the one process, as occurred in this case.
5 Board Material: Under s.58 of the Tribunal Act an administrator is obliged to lodge with the Tribunal within 28 days of the application material documents where a decision is reviewed. The Board lodged them on 11 February 1999. These comprised the applicant’s original application dated 18 June 1998, the applicant’s letter supporting its application for registration and accreditation, the application itself (a document of 36 pages), two inspectors’ file notes, a short discussion paper on “virtual” or Internet schools, letter from the applicant, extracts from draft report to the Board dated 8 December 1999, Board Document 98/3374 which appears to be a briefing note to the Board, Submission to the Minister for Education dated 22 December 1998 and letter dated 22 December 1998 to applicant. The Submission to the Minister and in particular the letter dated 22 December 1998 contain the decisions of which the applicant complains.
Jurisdiction
6 Under s.8 of the Tribunal Act “a reviewable decision is a decision of an administrator that the Tribunal has jurisdiction under an enactment to review”. The primary jurisdiction which the applicant sought to invoke is that conferred by s.107 to s.109 of the Act. These provisions commenced on 6 October 1998: Gov Gaz (2 October 1998) 7889. The particular provision the applicant cited as founding jurisdiction is s.107. Under s.107 of the Act the Tribunal is empowered to determine applications for review of “a recommendation of the Board that registration of a non-government school be refused” (s.107(1)(a)); and for review of “a decision of the Board not to accredit a school” (s.107(1)(f)).
7 While the applicant cited s.107 as the basis for its application for review, section 109 may also be relevant. Section 109 of the Act addresses the role of the Tribunal in relation to a failure by the Board to make a recommendation or decision. It covers applications of the kind made in this case and provides in sub-s.(2):
“ For the purposes of section 6(4) of the Administrative Decisions Tribunal Act 1997, the Board or Minister (as the case may be) is taken to be required to make a decision in relation to an application to which this section applies within 5 months of the lodgment of such an application.”
8 The reference to s.6(4) above is clearly a mistake as the provision in the Tribunal Act which relates to the specification of time periods for the making of decisions by enactments is s.6(5). In the present case the communication giving rise to the review application was made 6 months and 3 days after receipt of the original applications.
9 Other provisions of s.6 of the Tribunal Act are also material to the review application.
Section 6(2) provides:
“Decision made under an enactment
“ Decisions made without power
For the purposes of this Act, a decision is made under an enactment if it is made in the exercise (or purported exercise) of a function conferred or imposed by or under an enactment.”
Section 6(3) provides:
“ Failure to make decision on basis that beyond power
For the purposes of this Act (and without limiting subsection(2)), a decision that purports to be made under an enactment is taken to be a decision made under the enactment even if the decision was beyond the power of the decision-maker to make it”.
Section 6(4) provides:
Role of Tribunal
For the purposes of this Act (and without limiting subsection (2)), a refusal of a decision-maker to make a decision under an enactment because the decision-maker considers that the decision concerned cannot lawfully be made under the enactment is taken to be a decision under the enactment to refuse to make the decision requested”.
10 Effect of Tribunal Decision: In the case of the recommendation not to register, the Tribunal may confirm it or make a different recommendation to the Minister (s.108(1)(a) and (b). In the case of the decision not to accredit the Tribunal may recommend to the Minister that the Minister accredit the school as requested or grant such other accreditation as the Tribunal considers appropriate (s.108(1) (c)). It will be seen that in each instance the Tribunal’s powers on review are qualified. In neither case is the determination made by the Tribunal a decision conclusive as to the outcome of the matter, in contrast to the position which ordinarily applies to the Tribunal’s decisions (as to which see s.63 and s.65 of the Tribunal Act which are ousted by s.108(2) of the Act).
11 Questions of Law: As will become apparent, this application for review raises some questions of statutory interpretation. Under s.78(2) of the Tribunal Act “a question of law (including the question whether a particular question is a question of law) arising in proceedings constituted by one or more judicial members is to be decided in accordance with the opinion of the judicial member”. There is one judicial member, the President, sitting in these proceedings.
The Application to the Board
12 The Application for Registration and Accreditation lodged with the Board is dated 19 June 1998. As noted earlier the unusual feature of the original application was the proposal to educate students substantially by remote communication through Internet access. The applicant claimed to be offering a ‘world first’ and sought initial registration for two years, on a pilot basis before any other ‘virtual school’ was given registration.
13 The school is proposed to be conducted from the 11th floor of a building in the Central Business District of Sydney (11th floor, 70 Pitt Street). In the ‘Principal’s Statement’ forming Section A of the application to the Board the following description of the school is given:
“Net Grammar School is a school unlike any other school. It has no classrooms, playgrounds, gymnasiums or science laboratories. Students attending Net Grammar School learn in virtual classrooms. They use the Internet to communicate with their teachers and peers. For class sessions the teacher and the students enter a chat room to share ideas and gain information. A problem worked on the virtual whiteboard appears simultaneously on each student’s screen. Net Grammar School has made distant learning and university entrance qualifications available to anyone, anywhere in the world.”
14 Under the heading ‘Objectives’ appears the following:
“The Net Grammar School’s primary objective will be to prepare students for the NSW HSC. It will do this through communicating over electronic mail and other services on the Internet. Students will be able to ‘attend’ the virtual classroom regardless of their geographic location. It will be of particular appeal to students located in Asia, Polynesia and the South Pacific. It will give students the opportunity to qualify for entrance to Australian universities and International universities.
A secondary objective is to provide students who attend conventional schools with revision opportunities. “Study students” will be able to ‘attend’ virtual reality classes to revise lessons taken in conventional classroom. Net Grammar School will be able to allow students to attend classes as many times as they like so that they obtain maximum benefit from each lesson.”
15 The proposal contemplates that students will normally come to New South Wales to sit the exams. It indicated that intensive study camps will be organised in New South Wales before the start of the exams, but indicates also that “we may have some students who will find the cost of such a camp beyond their means and will need to sit the exams in their own country.”
16 The application for registration made detailed reference to the proposed curriculum. The subjects intended to be offered are: in English Category A, General English and Contemporary English; in Key Learning Area Group 1, Category A, Mathematics and Mathematics in Society, Computing Studies General and Computing Studies Common; in Key Learning Area Group 2 Category A, Economics, Legal Studies, Business Studies, General Studies, Japanese and Indonesian. The application envisages 50 students (25 boys, 25 girls) in year one (then contemplated to be 1999) for Year 11, with those 50 comprising the year two Year 12 group with a further 100 students (50 boys, 50 girls) enrolling in Year 11.
17 The application includes details as to the expected study commitment of students, and the method of education. It says:
“The form of study will include group sessions through Microsoft NetMeeting and a dedicated chat room, talking to his or her tutor using ICQ E-mail service, and self-managed learning encompassing essays, research, reading, note taking and set exercises. A special time each week will be set aside for the students to make contact with his or her ‘homeroom teacher’ to discuss general problems, concerns and questions.”
18 Due to differences in time zones the times when students might contact their individual tutors and other class mates are intended to be organised within three one hour time bands between 7 and 10 pm Australian Eastern Standard Time 5 nights a week Monday to Friday, with a ‘Homeroom’ hour on a Sunday evening.
19 The application includes information as to how failures to submit assessment tasks, absences and cheating are to be dealt with. Detailed curriculum material is included.
20 The proposed principal, Ms Ford, and six other prospective teachers are named in the application with their years of experience as teachers, academic qualifications and proposed subjects given (with one further to be advised in respect of Japanese and Indonesian).
21 Under the section of the application headed ‘School Premises, Buildings and Facilities’ the following statement is made:
“As the Net Grammar School is a virtual classroom this section does not apply”.
Deliberations by the Board
22 The nature of the application caused concern to the Board’s inspectors from the outset. An examination of the application commenced and discussions occurred between the Board’s inspectors and the applicant. These events are referred to in the Board file lodged with the Tribunal but there is no detail provided.
23 The areas of concern of the Board are recorded in an undated handwritten memorandum addressed to all inspectors by Mr Graham Sims, Inspector (Languages). (It appears to have been written between late June and early July, as the next document in the Board material is dated 9 July.)
“ There are obviously major factors to be considered in accrediting an institution which proposes to prepare off-site and mainly overseas students for the NSW HSC by using Internet technology and ‘virtual reality’.
Such considerations, at least to my mind, include:
24 In a subsequent Discussion Paper prepared for consideration by the Registration Committee of the Board, to the above list were added three more factors of concern:
* the definition of ‘what is a school?’
* building and facilities
* supervision
* attendance
* HSC Assessment (including assurances of bona fide, original student work)
* social interaction
* monitoring and inspection procedures.”
25 The Registration Committee’s minutes as submitted to the Board for its meeting of 8 December 1998 note that “it had received advice that registration in NSW requires a school to exist in the conventional sense and so does recognition outside NSW”.
* duty of care
* qualifications and suitability of staff
* role of the principal.
26 The Board’s consideration of the matter is recorded in the draft Board report dated 8 December 1998, as follows:
“The Net Grammar School had applied for registration and accreditation or recognition. It had subsequently been agreed that recognition would be more appropriate as the school intended to provide Internet courses from Sydney using local teachers and leading to the HSC for students in Korea and nearby countries.
The Board received a paper which advised that registration in NSW requires a school to exist in the conventional sense, as does recognition outside NSW. The Board noted the following points:
27 The question of whether the Board had an application before it with which it was competent to deal gave rise, it would seem from the Board material, to a request for legal advice from the Crown Solicitor in November 1998. The Tribunal has not seen that advice, but we gather that it is consistent with the submissions made at hearing which were essentially of a jurisdictional character. They were to the effect that the original application did not propose a ‘school’ within the meaning of the Act, and that therefore the Board was not competent to deal with the application.
(i) There is a question about whether the school could nevertheless operate and the students sit for the HSC.
(ii) Another issue concerns whether an existing registered school could set up an Internet arrangement.
(iii) The issue is very important. The Board needs to be giving consideration as to which conditions would make an Internet arrangement acceptable and, in the fullness of time, look to making recommendations to Government for amendment to the Act.”
28 But the Board did not notify the applicant on receipt of any such advice that it may not be competent to deal with the application, thereby giving the applicant the opportunity to test that decision by way of judicial review.
29 Instead the Board continued to process the application. The Board’s letter dated 22 December 1998 formally responded to the original applications received on 19 June 1998. The Board advised the applicant: “The Board … has recommended that your application for registration and accreditation of the proposed Net Grammar School be declined”.
30 The Board sent a memorandum of advice to the Minister on the same date recommending that the Minister “decline the application for registration of the proposed Net Grammar School”. There is no reference to accreditation.
31 The substantive text of the letter written under the letterhead of the Office of the Board of Studies is as follows:
“Dear Ms Ford,
I refer to your application of 19 June and our recent discussions concerning the registration and accreditation of the proposed Net Grammar School by the Board of Studies.
In reviewing your application the Board considered whether:
* the entity must be registered as a non-government school and then accredited under the Education Act 1990 (the Act);
* the normal registration requirements for non-government schools can be interpreted or modified to take account of the distance education mode of delivery proposed.
In summary, it was found that :
* the Act required registration and accreditation rather than recognition; and
* as a school would not exist in a conventional sense, the Board would be unable to lawfully find that the registration requirements of the Act for non-governmental schools could be satisfied by your company’s proposal.
The Board has endorsed this view and recommended that your application for the registration and accreditation of the proposed Net Grammar School be declined.
The Office remains available to assist by advising you of the services which may be lawfully offered by your company.
Yours sincerely
John WardGeneral Manager”
32 The internal memorandum from the Office of the Board to the Minister also dated 22 December 1998. It forwarded the proposal and the Board’s reply. The memorandum includes the following paragraphs:
“ Current Position
33 The Minister subsequently endorsed the memorandum with his hand-written signature and the hand-written date “18/1/99”.
* The Office obtained legal advice from the Crown Solicitor’s Office that:
- the Act required registration and accreditation rather than recognition;
- as a school would not exist in a conventional sense, the Board was unable to lawfully find that the registration requirements of the Act for non-governmental schools could be satisfied.
* The Board of Studies endorsed this view at its meeting on 8 December.
* I subsequently wrote to Ms Ford to advise her of this recommendation.
* Ms Ford is dissatisfied with the Board’s recommendation and she has left open the option of appealing any subsequent decision by the Minister to refuse the application for registration.
Comment:
While the Board and the Board’s Registration Committee accept that there was some underlying merit to the company’s proposal, it was accepted that registration and accreditation is beyond the Board’s statutory power. The Board has indicated it wishes to explore this issue further with a view to consulting with relevant interest groups on the desirability of legislative change or regulation in this area.
Recommendation:
That the Minister endorse this approach and decline the application for registration for the proposed Net Grammar School.”
Was there a Recommendation to Refuse founding Jurisdiction?
34 What is less than clear is whether the advice conveyed to the applicant in the letter of 22 December amounts to a recommendation that the registration of the proposed non-government school be refused; and consequently a decision not to accredit.
35 As noted above, the letter and the memorandum to the Minister speaks of the application for registration being “declined” as distinct from “refused”. The applicant in filing its application with the Tribunal has proceeded on the basis that there has been a reviewable decision to refuse to recommend registration (see Act, s.107(1)(a)) which gives rise to the necessary consequence that the application in relation to accreditation can not be proceeded with.
36 The steps required to be observed by applicant and the Board in seeking initial registration of a non-government school are set out in s.47- s.53 of the Act. The applicant’s original application dated 18 June 1998 is expressed to be made pursuant to these provisions, with the accreditation application expressed to be made pursuant to s.85.
37 In correspondence with the Board and before the Tribunal the applicant has raised concerns as to non-observance of aspects of that procedure. The Board material reveals that it entertained doubts from soon after receipt of the application as to whether the proposed education initiative amounted to a ‘school’. It sought legal advice (not made available to and not sought by the Tribunal) which led it to believe that it may not be competent to deal with the application on the basis that what was proposed by the applicant was not a ‘school’ within the meaning of the Act. Accordingly it may not have regarded itself as formally obliged to deal with the application in the manner contemplated by ss.47 to 53.
Board’s Case Before Tribunal
38 Before the Tribunal the Board conducted its case on the basis that the proposal it was dealing with did not involve a ‘school’ within the meaning of the Act. Its position is that it could not proceed to undertake the registration assessment until it has before it an education proposal that satisfies a threshold requirement of being a ‘school’. The applicant on the other hand submitted to the Tribunal that it was dealing with a ‘school’ within the meaning of the Act; the application had been the subject of a recommendation of refusal; and it sought an alternative recommendation from the Tribunal .
39 It would seem that the Board’s interpretation of its powers caused it to use the expression ‘declined’ rather than ‘refused’ in advising the applicant of the outcome of its deliberations.
40 The approach taken by the Board in mounting the case before the Tribunal as one of power would appear to mean that a ruling in those terms would allow it to decline to process applications from ‘virtual reality’ schools, and to obviate the need for it to engage in the process of investigation of such applications, the making of formal recommendations or decisions, and the giving of reasons for conclusions.
41 The Board’s letter of 22 December 1998 does not convey clearly whether its position was that it did not have an application before it with which it could deal, or whether its position was that in accordance with normal procedures it had considered the application and found it deficient as measured against the registration requirements set out in s.47 and any policies or guidelines.
42 The applicant, not unreasonably in the Tribunal’s view, took the view that it was dealing with a decision to recommend refusal; and that consequently the requirements as to procedure after such a decision was made set out in s.51 came into play. The procedure adopted by the Board in making the recommendation to the Minister appears to have been founded on s.51 of the Act, though there is no specific reference to that section in the Board’s memorandum.
Section 51 provides:
43 The application seeking review of the Board’s decision was filed with the Tribunal on 16 January 1999, 24 days after the date of the Board’s letter to Ms Ford. That was during the 30 day period referred to in s.51(3)(a).
“ Determination by Minister of applications for initial registration of new non-government schools etc
(1) As soon as practicable after receiving the report of the Board about an application for registration of a non-government school, the Minister:
(a) is to register the school in the Register kept by the Minister for the purpose and issue to the applicant a certificate of registration for the school, or(b) is to refuse to register the school.
(2) The Minister is to register the school if the Minister, having considered the Board's report and any decision of the Tribunal, is satisfied that the requirements for registration will be complied with at the school.
(3) If the Board has recommended that a school not be registered, the Minister may not refuse to register the school unless:
(a) 30 days have elapsed since the applicant was given written notice of the Board's recommendation and no application has been made to the Tribunal for a review of the recommendation within those 30 days, or
(b) the Tribunal has determined an application for a 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 a review of the recommendation has been withdrawn.
(4) The Minister is to give an applicant written notice of a decision to refuse to register a school.”If the step taken by the Board is properly to be characterised as a recommendation to refuse, the Minister is prevented from further dealing with the matter until the Tribunal has determined the application and the Minister has considered any contrary recommendation of the Tribunal and the reasons for it: s51(3)(b).
Conclusion
44 The matter is not free from doubt, but we are inclined to the view that the communications with the applicant and to the Minister constitute in practical terms a “recommendation to refuse registration”. If that decision is one that is beyond power, it remains reviewable by the Tribunal by virtue of s.6(3) of the Tribunal Act: see para 9 above. If on the other hand we are wrong in our conclusion that the decision is one positively to refuse registration then the circumstances are governed by s.6(4) of the Tribunal Act. As noted earlier (see para [9] above), a refusal to make a decision under an enactment because the decision-maker considers that the decision concerned cannot lawfully be made under an enactment “is taken to be a decision made under the enactment to refuse to make the decision requested”.
45 It follows from this analysis that the Tribunal is not obliged to resolve the threshold question going to the Board’s competence, i.e. whether it ever had before it original applications relating to a proposed ‘school’ within the meaning of the Act. But as that question was debated at length and will be seen as material on the further consideration of the applications we offer the following observations.
What Meaning Should be Attached to the Undefined Term ‘School’?
46 The term ‘school’ is not defined by the Act. The Board argues that the meaning which the Parliament intended to attach to the term is to be derived from its natural meaning, as informed by the contexts in which the term is used within the Act.
47 The applicant also contends that the term should be given its natural meaning, but argues for a wider interpretation than that proferred by the Board. It argues that the contextual references in the Act should not be given undue weight and that a modern interpretation reflective of changes in the wider social environment of learning should be given to the term “school”.
48 The Board argues that the ordinary community usage of the term ‘school’ in the context of the education of children up to year 12 conceives of a physical facility at which children congregate for the purposes of instruction. The need for there to be a physical facility is consistent, the Board argues, with the social aims of the education of children.
49 Dictionary definitions would appear to lend some support to such an understanding. The Macquarie Dictionary (2nd ed.1991) gives as the first meaning a “place or establishment where instruction is given, esp. one for children”. The second meaning given is “the body of students or pupils attending a school”. Both definitions conceive of a school as having a collegiate location where pupils gather for instruction. The first definition in the Australian Concise Oxford Dictionary (1st Aust ed.1987) places less stress on the idea of a collegial location giving as the meaning -“institution for educating children or giving instruction”. The second meaning given in that Dictionary is “buildings of such an institution”, thereby differentiating between the concept of an institution and the physical home of an institution.
50 The Board argues that there are many features in the Act which support its view. In the registration requirements at s.47(e) reference is made to the need for “school premises and buildings that are satisfactory”. Similarly s.47(f) conceives of a school as a place of physical congregation, when it refers to the need for “official school policies relating to student discipline” albeit ones “that do not permit corporal punishment of students attending the school”. The Board argues that the Parliament’s express direction that corporal punishment not be permitted contemplates necessarily an environment in which there is direct interaction between staff and students, upon which limits must be placed. Similarly the reference in this clause to “students attending the school” should be seen as referring to attendance in its usual sense of physical attendance. On the other hand, the Act as previously noted recognises the possibility of correspondence schools where physical interaction is absent.
51 The Board refers to a number of other aspects of the structure and terminology of the Act. The contradistinction found in the Act between ordinary schooling and education at home (see e.g. s.5) points towards schooling as being undertaken in a defined physical location.
52 Other provisions referred to by the Board included
* s.47(c) - the requirement for registration that the educational facilities be “adequate for the courses of study provided at the school”
* s.22, stating the duty of parents to cause a child (over 6 and under 15 years of age) to be enrolled at a school “and to attend the school at all times when the school is open for the child’s instruction or participation in school activities”
* the terms of the defence to a charge of failing to send a child to school contained in s.23(3)(b) which refer to a child being “prevented from attending school” because of sickness or some other incapacity
* the requirement of s.66 that a current certificate of registration “be displayed in the entrance to the main school building or other conspicuous place at the school”.
53 In reply to the Board, the applicant argued that the term ‘school’ should not be equated with physical boundaries and a fixed educational location. It contended that account should be taken of the applicant’s aim in seeking to provide educational services for children who are living in remote areas of Australia or countries outside Australia. It acknowledged the need for its application to satisfy the registration requirements of s.47. In relation to the matter of “educational facilities” (see para (c)) offered by a proposed institution, it argued that no connotation that they had to have a fixed physical location should be drawn. The crucial element of s.47(c) was that the facilities offered be “adequate for the courses of study provided by the school”. Similarly the reference in s.47(e) to school premises had to take into account the totality of the requirement which is that the school premises and buildings be “satisfactory”.
54 The applicant also referred to s.6 of the Act which sets out a variety of objectives according to which the Act is to be administered. These include “mitigating educational disadvantages arising from the child’s gender or from geographic, economic, social, cultural, lingual or other causes” (para (1) (e)). The applicant argues that its proposal would alleviate students from these difficulties by allowing them to live at home while undertaking their courses.
55 The written submissions filed by the applicant summarise its case as follows:
“To have a strict rule that children congregate in a place for instruction is to ignore the emphasis the Parliament has placed on education at home and addressing the needs of children who do not have ready access to NSW schools. It is submitted that the test of whether facilities will be adequate and school premises satisfactory is whether the children can be educated to the requisite standard. The Board of Studies is forbidden by sections 5 [Principal objects of this Act] and 6 [Objects for administration of this Act or of education] from relying upon rigid or inflexible requirements for physical buildings and interactions.”
56 As to the references by the Board to requirements of physical attendance at school, the applicant submitted that this is only relevant to the compulsory schooling period (6 to 15 years). It was noted that the applicant’s application relates to non-compulsory education. As to the requirement for display of a certificate of education, it argued that this provision is immaterial to a situation where there is no physical premises. The matter is simply not addressed by the provision. As to the correspondence school exception in the offence provision (s.23) the applicant argued that it proposed a school “similar” to a correspondence school a possibility recognised by the exception which provides a defence where a child is “enrolled at a correspondence school or other similar institution”.
57 There was some further correspondence with the Tribunal by the applicant after the hearing, and an opportunity was given to the Board to comment on it. In essence the applicant expressed concern over the degree of emphasis on the need for physical premises, and said that if given the opportunity at the time by the Board it would have addressed this concern more fully. The Board noted in its written response that the application had dealt with this matter in the way noted earlier in these reasons by indicating that “As the Net Grammar School is a virtual classroom this section does not apply”.
Conclusions
58 As previously noted, the Act does not seek to define the term ‘school’. We favour a meaning of the kind that appears first in the Australian Concise Oxford Dictionary - “an institution for educating children or giving instruction”. We prefer this to the first meaning given in the Macquarie Dictionary, with its emphasis on physical location - “a place or establishment where instruction is given”. A meaning should be applied to the term ‘school’ for the purposes of interpreting the Act which is not artificial or forced. We consider that the Oxford definition avoids undue emphasis on the need for the term ‘school’ always to be understood as referring to a place where students physically gather for instruction.
59 We consider that the application involved a proposal for a ‘school’ in the broad sense of the term - it proposed an institution for the provision of education and instruction.
60 As noted previously, the Act refers to the “correspondence school or similar institution”. Here the term institution is used in connection with a remote learning facility. This lends support, we consider, to the conclusion that the Act’s use of the term ‘school’ is not to be read down so as to exclude absolutely from consideration an institution of the kind proposed.
61 In making this observation we acknowledge the force of the Board’s submission that when the Act was before the Parliament as principal legislation in 1990 it is unlikely that legislators would have conceived of the possibility of a higher secondary school which operated almost entirely by means of Internet communication.
62 Nonetheless we are reluctant to promote the attachment of a meaning to the term ‘school’ which forecloses the opportunity to applicants for registration to bring forward proposals for registration and accreditation which are at variance with the social understanding of a higher secondary school as it existed in 1990. We also note that one of the objects laid down by Parliament for the administration of education in s.6 relates to “(c) encouraging innovation and diversity within and among schools”.
63 An interpretation should not readily be applied to the term ‘school’ at the gateway of the registration assessment process which has the effect of constraining the bringing forward of innovative proposals. Clearly the present proposal is innovative in character.
64 Such an approach to the question of definition has the benefit that the Board must address applications which propose the establishment of “an institution for educating children or giving instruction” by reference to the procedure and requirements laid down by the Act.
Some Registration Issues
65 What is required for a school to obtain registration involves many further issues. We recognise that a number of difficulties confront an applicant seeking registration of an Internet HSC school. The statutory requirements for registration need to be read in the context of the legislation as a whole.
66 We agree with the Board that at a number of points the Act appears to proceed on the assumption that a registered school will be characterised by a physical building at which teachers and students gather. A provision that we regard as very material to the present application in giving an insight into Parliament’s conception of an appropriate higher secondary school environment is s.6(1A) which states:
“It is the intention of Parliament that the provision of courses of study required by this Act for the Higher School Certificate has the following objects:
67 The Parliament’s statement of objectives clearly, in our view, envisages the HSC as a process which has as a fundamental element the preparation of students for effective participation in the local community. How that goal can be achieved by simply offering a courses of study to overseas-based students studying from home is difficult to see. A virtual reality school would involve a substantial departure from the notion of a school as an environment where teachers and young people gather for an education which is broader than the contents of the assessable curriculum. In some ways the proposal is more akin to the services offered by a coaching college.
(a) to provide a curriculum structure that encourages students to complete secondary education,
(b)to foster the intellectual, social and moral development of students, in particular by developing:
(i) their knowledge, skills, understanding and attitudes in the fields of study they choose, and
(ii) their capacity to manage their own learning, and
(iii) their desire to continue learning in formal and informal settings after school, and
(c) to provide a flexible structure within which students can prepare for:
(iv)their capacity to work with others, and(v) their respect for the cultural diversity of Australian society
(d) to provide formal assessment and certification of students’ achievements,
(vi) further education and training; and
(vii)employment, and
(viii)full and active participation as members of the community,
(e) to provide a context within which schools also have the opportunity to foster the physical and spiritual development of students.”
68 Nonetheless these are matters which should be more fully explored by the Board with the applicant.
Summary of Conclusions
69 The Tribunal considers that the original applications received by the Board contained a proposal that pertained to a ‘school’ in the ordinary sense of that term. It commenced to doubt its competence to deal with the application following legal advice. The communication of the outcome of its processes to the applicant dated 22 December 1998 is unclearly expressed. That communication either constituted a refusal to recommend registration or a refusal to make a recommendation because the Board regarded itself as not having power to make the decision. While our preferred view is that it constituted a refusal to recommend registration, in either case the decision is amenable to review by the Tribunal (see s.107(1)(a) of the Act and s.6(4) of the Tribunal Act). Consequently the present application has the effect of suspending the Minister’s decision-making responsibility, as provided for in s.51.
70 A similar position applies in relation to the decision as to accreditation. Though the letter of 22 December 1998 speaks of the Board recommending a course of action to the Minister in relation to accreditation, the letter records, we consider, a decision not to accredit, as provided for in s.86, and the Minister’s power to make a different decision is suspended pending determination of this application (s.88,s.89). (The Tribunal observes that terms of the letter of 22 December 1998 are misleading in so far as they may be interpreted as suggesting that the Board’s powers in relation to accreditation are merely ones of recommendation.)
71 The Board has not, we consider, adequately considered the application, presumably because of its concerns over the question of competence. It needs, we consider, to appraise the applications fully against its criteria.
72 The key issue is that of registration. It should proceed to deal immediately with that application. It is now a year since the original applications were lodged and the applicant do not have the benefit of a detailed substantive response to their application addressing the registration criteria.
Determination and Recommendation
73 The decisions of the Board communicated to the applicant by the letter dated 22 December 1998, being decisions to refuse registration and not to accredit, are not confirmed.
74 Pursuant to s.108(1)(b) of the Education Act 1990 (‘the Act’), the Tribunal makes the following recommendation to the Minister:
that the Minister direct the Board -
* to proceed to consider the application fully in accordance with Division 3 of Part 7 of the Act* to make a recommendation in relation to the application for registration pursuant to s.51 within 30 days
* to provide the applicant with a statement of reasons as to the extent to which the application satisfies or fails to satisfy the criteria for registration prescribed by s.47 of the Act
* then to proceed expeditiously if registration is granted to deal with the application for accreditation to present candidates for the Higher School Certificate.
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