FRT v NSW Education Standards Authority

[2023] NSWCATAD 24

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FRT v NSW Education Standards Authority [2023] NSWCATAD 24

Hearing dates:

30 June 2022 and 1 July 2022

Date of orders:

30 January 2023

Decision date:

30 January 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

T Simon, Principal Member
M Maher, General Member

Decision:

(1) The Minister for Education and Early Learning is joined as a respondent

(2)   The publication of the names of the applicant and her children is prohibited and the names are to be anonymised.

(3) The Applicant’s complaint is dismissed pursuant to s 108(1)(a) of the Anti-Discrimination Act 1977

Catchwords:

HUMAN RIGHTS – Discrimination – grounds of disability – educational authority - direct and indirect discrimination – home schooling – guidelines - denial to 2-year registration - whether differential treatment - comparator – educational authority – administer - services

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Education Act 1990 (NSW)

Education Standards Authority Act 2013 (NSW)

Cases Cited:

IW v City of Perth (1997) 191 CLR 1

Turner v State Transit Authority & anor [2004] NSWADT 89

Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124

Category:

Principal judgment

Parties:

FRT (Applicant)
NSW Education Standards Authority (First Respondent)
Minister for Education and Early Learning (Second Respondent)

Representation:

Counsel:
D Fuller (First and Second Respondent)

Solicitors:
Applicant (Self-represented)
Lander and Rogers (First and Second Respondent)

File Number(s):

2022/00046801

Publication restriction:

Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the disclosure, publication or broadcast of the names of the applicant, her children and photographs of her children is prohibited.

REASONS FOR DECISION

1. The applicant alleges that the respondents’ have unlawfully discriminated against her son by granting registration for home schooling for a period of one year, rather than the maximum period of two years under s 73(3) of the Education Act 1990 (NSW) (Education Act). The application has been made on the grounds of discrimination because of disability in education under s 49L of the Anti-Discrimination Act 1977 (NSW) (AD Act) or the discrimination in the provision of services under s 49M of the AD Act.

2. We have decided to dismiss the applicant’s complaint.

Non-publication of Names

3. These proceedings relate to the registration of a child for home schooling. The child is a minor. Both parties agreed that there should be a prohibition on the publication of the child’s name. The respondent did not oppose non-publication of the mother’s name and the siblings’ names, as they may identify the child. On that basis, non-publication orders have been made and the names of the applicant, subject child and his siblings have been anonymised. The evidence before the Tribunal also included photographs of the subject child and his siblings. Those photographs are also subject to a non-publication order.

4. To protect the anonymity of the minor, we have also referred to the parties, the siblings, and various witnesses by reference to their relationships to each other.

Exhibits

5. Prior to the hearing the respondent provided a court book collating all the documents which had been provided by the parties.

6. The applicant had not provided a formal statement with the documents. However, she had provided submissions which were adopted as statements. The exhibits were marked as follows

1. Exhibit 1 – The applicant’s submission and documents contained at tabs 6 -36 of the Court Book

2. Exhibit 2 – The applicant’s submission and documents in reply contained at tabs 41 - 57 of the Court Book

3. Exhibit 3 – Statement of Karen Chegwidden contained at tab 58 of the Court Book

4. Exhibit 4 – Affidavit of Stan Browne contained at tab 38 of the Court Book

5. Exhibit 5 – Affidavit of Zannah Mathieson contained at tab 39 of the Court Book

6. Exhibit 6 – Affidavit of Robert Lewis contained at tab 40 of the Court Book

7. Exhibit 7 –Table of periods of home-schooling registration for the period 2019 to 2021, provided by the respondents on 30 June 2022

8. Exhibit 8 –Table of reasons for home schooling registration – 2018 – 2021,

7. The applicant, Karen Chegwidden, Stan Browne, Zannah Mathieson and Robert Lewis were all cross examined at the hearing.

8. We have considered the exhibits and oral evidence and submissions made at the hearing in coming to our decision.

Background

9. On 12 August 2021, the applicant submitted to NSW Education Standards Authority (NESA) an application for renewal of her son’s registration for home schooling. Her son was first registered for home schooling the previous year, for a duration of one year.

10. The applicant submitted four documents in support of the renewal application. Robert Lewis, on behalf of NESA, assessed those documents and formed concerns about the level of recordkeeping demonstrated by those documents. Mr Lewis recommended that the child’s home-schooling registration be renewed and set the registration period for one year. Mr Lewis considered that there were some areas requiring improvement relating to the applicant's record-keeping. The applicant later provided two further documents in relation to record keeping to Mr Lewis and he determined that they would not have affected his recommendation.

11. Mr Lewis's recommendation was reviewed by a NESA Inspector and was later provided to the delegate of the Minister. Stan Browne made the decision in relation to the renewal application and accepted Mr Lewis' recommendation.

The Education Act

12. The applicant had originally only named NESA as the respondent. NESA administers the home-schooling registration process; however, NESA is not the decision-maker in relation to home-schooling. Section 72 of the Education Act makes clear that it is the Minister, on the recommendation of the authorised person delegated by the Minister (see definition of authorised person in s 3 of the Education Act) who decides whether to register or refuse to register a child for home schooling, having regard to the authorised person's recommendation. On that basis the Minister was also added as a respondent to these proceedings.

13. Registration for home schooling is dealt with in Part 7, Division 2, Subdivision 5 of the Education Act.

14. A parent of a child may apply in writing to the Minister for Education and Early Learning for the registration of the child for home schooling: s 71(1). The Minister is to obtain advice on the application from an 'authorised person': s 71(2).

15. Section 72 of the Education Act relevantly provides:

(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.

….

(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.

16. Section 73(3) of the Education Act sets out the duration of registration for home schooling as follows:

(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.

17. NESA is constituted under the Education Standards Authority Act 2013 (NSW) (NESA Act). NESA has developed a document called 'Guidelines for Home Schooling Registration in NSW’ (Guidelines), which set out the requirements for home schooling registration.

18. NESA has also developed a handbook which provides the authorised persons with details as to the process for assessing home schooling registration applications (AP Handbook).

Section 49L

19. The respondents do not dispute that the applicant’s son has been diagnosed with autism spectrum disorder level 3 and that is a disability within the meaning of the AD Act.

20. Section 49L relates specifically to discrimination against a person on the ground of disability by an educational authority.

21. The respondents submit that s 49L cannot apply to this matter because:

1. Neither of the respondents are educational authorities within the meaning of s 49L of the AD Act.

2. The conduct alleged by the applicant does not fall within s 49L.

Educational Authority

22. Section 49L (1) of the AD Act, relevantly sets out that:

(1) It is unlawful for an educational authority to discriminate against a person on the ground of disability—

(a) by refusing or failing to accept his or her application for admission as a student, or

(b) in the terms on which it is prepared to admit him or her as a student.

23. ‘Educational Authority’ is defined in s 4 of the AD Act as meaning:

… a person or body administering a school, college, university, or other institution at which education or training is provided.

24. In written submissions, the applicant submits that NESA is a body corporate and on that basis is an ‘NSW Government Agency’ with the corporate name of the “NSW Education Standards Authority” and by virtue of s4 is an educational authority for the purposes of the AD Act. The applicant relies on the NESA Guidelines and AP Handbook and the affidavits of Robert Lewis and Zanna Mathieson in support of the contention that NESA administers the home-schooling program or process. In relation to the guidelines the applicant refers to the statement that NESA is responsible for administering the provisions of the legislation for home-schooling registration.

25. The respondents submit that neither respondent is an educational authority for the purposes of s 49L because the respondents are not administering a school, college, university or other institution at which education or training is provided.

26. We agree with the submissions of the respondents and find that neither of the respondents are educational authority as is defined under s4 of the AD Act.

27. The respondents are a body, however, the respondents for the purposes of this matter, are not administering a school, college or university. We have considered whether home schooling may fall in the category of “other institution”.

28. In Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124, McColl JA with Mcfarlan JA agreeing stated the following at [143]:

Nevertheless, where there is a provision such as IR Act s 88(f), enabling the Commission to take into account “such other matters as the Commission considers relevant”, applying the ejusdem generis principle requires in my view, that the “other matters” must “encompass only matters of the same kind as those which precede” it. [117]

29. Consistent with that approach, the words “other institution” in the definition follows “school, college, university”. Those specific descriptions indicate the types of institutions which the relevant person or body must administer, so that home-schooling would fall within the category of educational authority. We are not satisfied that schooling of a person in the home is of the same kind as schooling in a school, college or university. Schools, colleges and universities have the features of an organisation or establishment. Home-schooling does not. On that basis, home-schooling does not fall into the category of “other institution” in the definition of an educational authority.

30. Even if we could be satisfied that either of the respondents are an educational authority, we are not satisfied that the respondents are “administering” home-schooling.

31. Part 7 of the Education Act applies to schools other than government schools (s37) and specifically to non-government schools and home-schooling. Section 71 of the Education Act, contained in Part 7, relates to the “registration” of home-schooling. It does not relate to the administration of schools in home. Subdivision 1 relates to the formation of systems for non-government schools and applications for the approvals of those systems. Subdivision 2 relates to the registration of non-government schools. Division 3 relates to financial assistance to non-government schools. Overall, Part 7 does not relate to the administration of non-government schools and home-schooling, rather it relates to their registration and financial assistance for non-government schools.

32. In contrast, Part 6 of the Education Act deals with government schools and both the Minister and NESA are given much broader functions in relation to government schools. Section 27 allows the Minister to “establish” a school. NESA monitors compliance by the schools (s27A). Importantly, s 34 of the Education Act lists the requirements for admission to government schools, including the grounds on which a child is to be enrolled, the grounds on which the Minister may refuse admission to a government school and the matters that can and cannot be taken when considering admission to a government school. Unlike Part 7, Part 6 deals with the establishment of schools and the admissions of students to schools.

33. The distinction of the role of the Minister and NESA regarding government schools and non-government schools is also highlighted in the defining of their function under Part 4 of the Education Act.

34. Section 19(b) of the Education Act describes the function of the Minister as establishing and supervising the operation of government schools. Section 19(c) refers to the Minister as exercising functions in connection with registration and financial assistance to non-government schools.

35. Similarly, s 20A sets out the functions of NESA under the Education Act. Section 20A (2) (b) describes one of the functions is to provide advice and make recommendations to the Minister about the registration of non-government schools under Part 7. There are other general functions contained in the section relating to matters such as developing or endorsing school syllabuses. However, nothing in s 20A establishes a function of NESA to administer home-schooling.

36. Paragraphs (a) and (b) contained in s49L (1) of the AD Act, refer to the way in which an educational authority may discriminate on the ground of disability. That is, by refusing or failing to accept the application for admissions as a student, or the terms on which it is prepared to admit the student. That is the same language as is used in s 34 of the Education Act in relation to admissions to government schools. As described above, we find nothing contained in Part 7 of the Education Act about admitting students for home-schooling. In relation to both non-government schools and home-schooling, the Education Act deals with registration (and financial assistance of the non-government schools). The Education Act does not deal with the admission of person as a student.

37. The distinction between government and non-government schools and home-schooling is also reflected s49L (3) of the AD Act. Section 49L (3) of the AD Act, excludes the following:

(3) Nothing in this section applies to or in respect of—

(a) a private educational authority, or

(b) a refusal or failure to accept a person’s application for admission as a student by an educational authority where the educational authority administers a school, college, university or other institution which is conducted solely for students who have a disability which is not the same as that of the applicant.

38. Section 49L (3) specifically excludes private educational authorities, giving further weight to the contention that s 49L overall is not meant to apply to non-government schools and home-schooling, but rather its purpose is to deal with discrimination on the grounds of disability by the respondents in their roles when considering admission to government schools, in particular in relation to admissions, establishment and supervision.

39. Private educational authority is defined in s 4 of the AD Act as meaning

…. a person or body administering a school, college, university or other institution at which education or training is provided, not being—

(a) a school, college, university or other institution established under the Education Act 1990 (by the Minister administering that Act), the Technical and Further Education Commission Act 1990 or an Act of incorporation of a university, or

(b) an agricultural college administered by the Minister for Agriculture.

40. Home-schooling is not “established” under the Education Act or any of the other matters contained in paragraphs (a) and (b) above. The Education Act makes plain at s 27 that the Minister “establishes” government schools. However, no such provision exists in relation to non-government schools or home-schooling. Even assuming, that the Minister or NESA were “educational authorities”, they would then fall into the category of private educational authorities, indicating that s 49L, again supporting the interpretation that the section was never intended to apply to home-schooling.

41. Section 49L (2) states:

It is unlawful for an educational authority to discriminate against a student on the ground of disability—

(a) by denying him or her access, or limiting his or her access, to any benefit provided by the educational authority, or

(b) by expelling him or her, or

(c) by subjecting him or her to any other detriment.

42. Again, the language of that sub-section is consistent with the language contained in s 34 of the Education Act relating to admission to government schools.

43. Even if we are incorrect and either of the respondents are educational authorities administering home-schooling for the purposes of s 49L of the AD Act, we find that recommending home schooling registration for a period shorter than the maximum period or registering a child for that shorter period does not deny or limit the child’s access to a benefit provided by the respondents. The maximum registration period of two years is not a benefit to be provided to the child, but a shorter registration period. That is not detrimental to the child.

44. In summary, we find that for all those reasons, s 49L of the AD Act does not apply to a decision relating to the registration of a child for home-schooling.

45. That is because home-schooling is not an institution and neither respondent is administering home-schooling, rather their role under Part 7 of the Education Act is to register home schooling.

Section 49M

46. The applicant also relies on s 49M of the AD Act. Section 49M relates to the provision of goods and services and relevantly provides the following:

(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability—

(a) by refusing to provide the person with those goods or services, or

(b) in the terms on which he or she provides the person with those goods or services.

(2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person’s disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services.

47. The respondents accept performing the statutory duty of deciding whether to register a child for home-schooling and deciding the duration of the registration involves providing the child with a service. However, the respondents submits that neither paragraph (a) or (b) apply in the circumstances of this case. We agree with the respondents submissions.

47. In relation to paragraph 49M (1)(a), the respondents did not refuse to provide the applicant with a service.

48. In IW v City of Perth (1997) 191 CLR 1, involved a question on appeal to the High Court as to whether the City of Perth unlawfully discriminated against an Incorporated Association, by refusing planning approval for the use of premises for persons with HIV. Gummow J stated at [44]:

In the present case, the Council did not refuse to provide services. It did not, for example, refuse to accept or to deal with the application by PLWA in respect of the premises at Walcott Street, North Perth. Section 66K(1)(a) could have no application. It deals with refusal to provide services. Accordingly, the appellant's primary submission should be rejected.

50. Similarly in this case, the respondents have done what is required and decided to register the child for home-schooling. In that regard the respondents did not refuse to provide a service.

51. In relation to paragraph 49M (1)(b) the duration of the registration could not be described as a ‘term’ on which any service was provided to the applicant.

52. In Turner v State Transit Authority & anor [2004] NSWADT 89 the panel of the former Administrative Decisions Tribunal NSW relevantly stated at [72]:

72 Section 38M(b) prohibits service providers from placing special, discriminatory conditions on their provision of services to transgender persons. In short, it seems to us that the prohibition relates to the terms and conditions on which services are offered to transgender persons. They must be no less favourable than the terms and conditions offered to other persons, in this case potential users of public bus services. Critically, the terms on which a service is provided are, unless later varied by agreement, settled before the service is provided. What happens after that is a matter of performance of the contract. In other words, it relates to the manner in which the service is actually provided.

53. The duration of the registration was not a ‘terms on which’ the registration for home-schooling was provided. The time does not condition the provision of the services to be settled before the service is provided.

54. For those reasons, the allegation of discrimination does not come within s 49M of the AD Act.

No discrimination

55. We conclude that neither s49L nor 49M of the AD Act can apply to the complaint the subject of this application and on that basis the complaint should be dismissed. In any case, if we are wrong, we have proceeded to consider the evidence and find that there was no direct or indirect discrimination by either of the respondents against the applicant.

56. Section 49B (1) of the AD Act provides:

(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if the perpetrator—

(a) on the ground of the aggrieved person’s disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

57. Section 49B (1) (a) of the Ad Act involves comparing the treatment of the applicant (in this case, applicant’s son) with the way in which a person without the relevant disability would have been treated in circumstances which are not materially different.

58. In this case, the objective features of the circumstances relevant to the child’s treatment by the respondents include the extent of the records kept by the applicant as to the implementation of the child’s educational program. The comparator is a child who has applied for renewal of their home-schooling registration with the same level of record-keeping having occurred in the prior period of registration.

59. There is no basis on which the Tribunal would conclude that the child was treated less favourably than this comparator child.

60. Data was provided, by the respondents in relation to periods of registration and renewal. However, that data does not assist the applicant’s case. The data indicates renewal periods of registration ranging from 6 to 24 months and 2 children were characterised as requiring improvement in record keeping.

61. Further, there are children identified as not having a disability also given shorter registration periods in cases where there are areas for improvement in record keeping. 15% of cases are given a renewal period of 12 months in the period for 31 December 2021.

62. Having considered the evidence we also find that the applicant’s record keeping was not satisfactory. The portfolio provided was sparce and much of it was put together after the registration period and with delay. There is very little overall recording of the child’s teaching and learning experiences.

63. Mr Lewis explained his rationale for recommending the one-year registration period for the child as being inadequate record keeping.

64. The applicant submitted that in circumstances of her son’s disability, there was no further record keeping required, as due to his disability, her son was unable to complete the relevant tasks and there was nothing to report. However, that does not explain why the applicant did not provide more detailed record keeping of the attempts she had made with her son to meet the relevant standards. We would not find that based on the reasoning provided by Mr Lewis, that there was any less favourable treatment of the child because of his disability. The Minister’s delegate adopted the recommendation of the authorised person, and there is no reason to find that was influenced by the child’s disability.

65. We are not satisfied that the child was treated less favourably. We are satisfied on Mr Lewis’ evidence that the child’s disability played no part in his assessment.

66. On that basis we would find no discrimination based on 49B (1) (a).

67. We would also not find discrimination that would come within 49B (1)(b) of the AD Act. As has been identified by the respondents, the paragraph essentially has four elements which must be demonstrated for the applicant to be successful:

1. The aggrieved person is required to comply with a requirement or condition

2. A substantially higher proportion of persons who do not have that disability (or a relative or associate with the disability) comply or are able to comply

3. The requirement or condition is not reasonable having regard to the circumstances of the case

4. The aggrieved person does not or is not able to comply.

68. In relation to the first element, the authorised person sought evidence of contemporaneous notes and found that the applicant’s record-keeping required improvement. We are of the view, that the findings of the authorised officer amount to the applicant having to comply with a requirement, being the keeping of records. However, the applicant would fail in relation to the remaining three elements required to satisfy indirect discrimination.

69. The applicant has failed to satisfy the Tribunal as to whether a substantially higher proportion of persons without Autism spectrum disorder level 3 comply or are able to comply with the requirement to provide adequate records of the implementation of their educational program. The data, discussed in [60] – [61] above is also of no assistance in that regard.

70. Further, in our view it is both reasonable and necessary to have a requirement for the provision of adequate records which demonstrates an appropriate educational program is being implemented for a child engaged in home schooling.

71. Section 4 of the Education Act sets out the principles on which the Act is based as follows:

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.

72. The applicant emphasised s 4 (b) of the Education Act and asserted that the education of a child is primarily the responsibility of parents. We agree that the education of children is the primary responsibility of a parent, however, the Education Act also identifies a role for the State to ensure that every child receives an education of the highest quality, including in relation to home-schooling.

73. Section 6 of the Education Act deals with the objectives for administration of the Act or of education and provides:

(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.

(1A) 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—

(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 or informal settings after school, and

(iv) their capacity to work with others, and

(v) their respect for the cultural diversity of Australian society,

(c) to provide a flexible structure within which students can prepare for—

(i) further education and training, and

(ii) employment, and

(iii) full and active participation as members of the community,

(d) to provide formal assessment and certification of students’ achievements,

(e) to provide a context within which schools also have the opportunity to foster the physical and spiritual development of students.

(2) This section does not limit the operation of any other provision of this Act.

74. We find that requiring evidence of recordkeeping, is consistent with the principles on which the Education Act is based and the objectives which the Act promotes. It is necessary to the consideration of whether to grant the application for renewal for home-schooling, that an assessment can be made as to whether education requirements have been met previously. Record keeping is an important part of that assessment, as record keeping assists in determining whether it can be expected that the relevant requirements will be met in the future and inform the decision of the assessor and the ultimate decision maker. It is reasonable for the respondents to expect parents to produce adequate evidence of their child's learning activities and progress, to promote the objectives of the Education Act.

75. Finally, the evidence does not demonstrate that the applicant is not able to comply with the requirement. The applicant stated that it was inappropriate to take photographs or videos of the child for record keeping reasons, particularly because of his disability. However, that is not the only way of record keeping and we are not satisfied that the applicant could not for instance have kept a diary in relation to the child’s activities or taken photographs or provided records of the activities themselves.

Defence of Statutory Authority

76. Section 54(1) of the AD Act provides:

(1) Nothing in this Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of—

(a) any other Act, whether passed before or after this Act, ...

77. The respondents submit that a shorter registration period for the child was necessary to achieve the objects of the Education Act (set out at [72] above]. The shorter registration period was necessary to allow the Minister to review the applicant’s compliance with the requirements for home schooling registration.

78. The respondents submit that it is a requirement of the Education Act that the Minister, upon receiving an application for registration of a child for home schooling, obtains advice on the application from an authorised person and decides whether to register the child for home schooling, having regard to that advice. It is also a requirement of the Education Act that, if a child is registered for home schooling, a certificate of registration is issued which specifies a period of registration.

79. The Education Act does not prescribe the period of registration to be granted (other than that it must not exceed two years). On a preliminary view, the obligations of the respondents to comply with the objectives of the Education Act, do not amount to a statutory defence in the context of this application. However, given our findings regarding this application overall, it is unnecessary to determine the issue and we make no finding in that regard.

Conclusion

80. For the above reasons, we find that the respondents would not be an educational authority for the purposes of s49L of the AD Act and that there has been no breach in relation to s 49M of the AD Act because the respondents did not refuse to provide the applicant with a service. However, even if we are wrong, we do not find that there has been either direct or indirect discrimination made out by the complaint. For that reason, the complaint is dismissed.

Orders

81. We make the following orders:

1. The Minister for Education and Early Learning is joined as a respondent

2. The publication of the names of the applicant and her children is prohibited and the names are to be anonymised.

3. The Applicant’s complaint is dismissed pursuant to s 108(1)(a) of the Anti-Discrimination Act 1977

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: 30 January 2023