Karlevics-Baker v NSW Education Standards Authority

[2025] NSWCATAD 85

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Karlevics-Baker v NSW Education Standards Authority [2025] NSWCATAD 85

Hearing dates:

31 March 2025

Date of orders:

14 April 2025

Decision date:

14 April 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Emeritus Prof R Graycar, Senior Member

Decision:

The recommendation under review is confirmed.

Catchwords:

Education Act- home schooling- registration- reregistration- whether statutory requirements satisfied- role of Tribunal on review

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013 (NSW)

Education Act 1990 (NSW)

Education Regulation 2017 (NSW)

Education Standards Authority Act 2013 (NSW)

Cases Cited:

Board of Studies v ANC High School Pty Ltd (GD) [2013] NSWADTAP 8

DFD v New South Wales Education Standards Authority [2018] NSWCATAD 48

Lawler v NSW Education Standards Authority [2023] NSWCATAD 273

M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31

Texts Cited:

None

Category:

Principal judgment

Parties:

Emily Karlevics-Baker (Applicant)
NSW Education Standards Authority (Respondent)

Representation:

Applicant (self-represented)
Lander and Rogers (Respondent)

File Number(s):

2024/00385427

Publication restriction:

None

REASONS FOR DECISION

Background and introduction

1. By an application made to the respondent on 21 March 2024, the applicant sought to have the respondent renew the registration of her son for home schooling. The renewal application was referred to an Authorised Person (AP) for assessment on 16 May 2024. The AP reported that attempts to contact the applicant over the period 17 May 2024 to 17 June 2024 had been unsuccessful.

2. On 2 July 2024, the Senior Inspector, Regulation of Schooling, wrote to the applicant advising that as attempts to contact her to arrange for assessment of the renewal application had been unsuccessful and the application had not been supported by evidence that demonstrated that the requirements for registration would be met, the respondent recommended that the application be refused. The applicant was advised that she could seek an internal review of the recommendation.

3. On 1 August 2024, the applicant sought internal review of the recommendation to refuse the renewal application. In her request for internal review, she stated:

In addition, I wish to submit Full documentation in support of the review, however, due to many technical breaches – I would like to submit it after further confirmed contact with NESA Home Schooling.

4. A new AP was appointed for the purpose of the internal review. After some initially unsuccessful attempts, the AP made contact with the applicant and a home visit was arranged to take place on 12 September 2024. At the applicant’s request, on 3 September 2024, the AP sent a hard copy letter confirming that appointment and also sent a reminder email about the home visit on 9 September 2024. At 6.04 pm on 11 September 2024, the applicant contacted the AP seeking to postpone the home visit. On 17 September 2024, the applicant was advised by letter that because she was unavailable for a home visit in the required timeframe, the AP had affirmed the original recommendation to refuse the renewal application. In the letter advising her of the outcome of the internal review, the applicant was also advised that she could seek review of the recommendation to refuse the application in the NSW Civil and Administrative Tribunal (the Tribunal). Alternatively, she was advised that she could withdraw the application and make a fresh application for home schooling for her son.

5. The applicant sought to have the recommendation to refuse registration reviewed by the Tribunal and lodged an application seeking that review on 16 October 2024.

The issue before the Tribunal

6. The issue before the Tribunal is whether the recommendation by the AP that the Minister refuse to (re)register the applicant’s son for home schooling is the correct and preferable decision.

7. The Tribunal is required to consider the evidence before it, both the documentary material and what was said at the hearing, by reference to the regulatory framework governing the approval of applications for home schooling which is set out next.

The relevant legislative framework

8. The main instrument relevant to this review is the Education Act 1990 (NSW) (Education Act). Section 4 sets out the principles as follows:

4 Principles on which this Act is based

In enacting this Act, Parliament has had regard to the following principles—

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

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

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

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

9. Section 5 provides for the objects of the legislation: these include to set out aspects of school curriculum; to provide for the establishment and operation of government schools and to allow children to be educated at home. Section 6 sets out a further set of objects to which those involved in the administration of the Act or the provision of education to school aged children are to have regard (so far as is practicable or appropriate). Amongst these is (s 6(1)(m)): “provision of opportunities for parents to participate in the education of their children”.

10. Part 2 of the Act provides for the school curriculum, Division 2 of which deals with secondary education. Section 9 sets out key learning areas for years 7-10, while s 10 sets out a minimum curriculum for years 7-10.

11. Part 4 of the Act allocates the various responsibilities under the Act between the Minister and the NSW Education Standards Authority (the Authority or NESA) which is defined in s 3 of the Act as the body constituted under the Education Standards Authority Act 2013 (NSW) (ESA Act).

12. A key provision of the Education Act is s 22(1): this provides:

22 Compulsory schooling—duty of parents

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

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

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

13. Home schooling is defined in s 3(1) of the Education Act as “schooling in the child's home, other than distance education provided by government or registered non- government school in which the child is enrolled”.

14. The process of being registered for home schooling is provided for by Part 7, Division 2 of the Education Act. In order to be registered for home schooling, it is necessary (see s 71) to apply in writing to the Minister who then seeks advice on the application from an AP (a person authorised by the Minister or the Minister’s delegate pursuant to s 119 of the Education Act). For the purposes of Part 7, an AP includes an inspector, defined in s 3(1) as meaning “an inspector within the meaning of the” ESA Act.

15. Section 72 provides in part:

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.

…

16. By s 72(2) the Minister is to register a child for home schooling if satisfied that the conditions subject to which registration is required to be given will be complied with. Those conditions are in turn provided for in s 73:

73 Conditions and duration of registration for home schooling

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

(2) The conditions so specified—

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

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

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

17. It will be recalled that Part 3 deals with curriculum, s 10 of which sets out the requirements that must be met by a curriculum for years 7-10. The regulations referred to are those set out in the Education Regulation 2017 (NSW), made pursuant to s 130 of the Education Act.

18. By reference to ss 72, 73 and s 10, in order for a child to be registered for home schooling, the Minister must be satisfied that the relevant conditions are complied with. Those conditions include that the curriculum requirements set out in Part 3 of the Education Act are met, ie, for years 7-10, that the child will receive instruction in six of the key learning areas specified in s 10.

19. The Respondent Authority has published Guidelines for Home Schooling Regulation in NSW (Guidelines) which are publicly available: see Guidelines for home schooling registration | NSW Government. A copy of these were in evidence before the Tribunal (and thus were made available to the applicant). While the Guidelines have no express statutory force, in circumstances where they are not inconsistent with the relevant legislative requirements, it is well accepted that guidelines “promote values of consistency and rationality in decision-making, and the principle that administrative decision-makers should treat like cases alike. In particular, policies or guidelines may help to promote consistency in "high volume decision-making"”: see M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [54] (per French CJ; Bell, Keane and Gordon JJ), referring to Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 642 (per Brennan J). This principle is incorporated into the Administrative Decisions Review Act 1997 (NSW) (ADR Act) by s 64(1) which provides:

64 Application of Government policy

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

20. Part 4 of the Guidelines sets out the requirements for registration. These include the following:

In order to be registered, the following requirements must be met:

▪ the child’s educational program is based on and taught in accordance with the relevant NESA syllabuses as determined by the Act, that is, the minimum curriculum for primary education (Kindergarten to Year 6), the minimum curriculum for secondary education (Years 7 to 10) or the curriculum for senior secondary education (Years 11 and 12) (Note: Sections 7 to 10 of the Guidelines provide details of the required curriculum.);

▪ the educational program is suitable to cater for the identified learning needs of the child;

▪ there is an adequate system for planning, supervising and recording teaching and learning experiences;

▪ there is an adequate system for recording the child’s progress and achievement;

▪ the time allocated to learning is sufficient to allow coverage of the curriculum;

▪ the home learning environment is suitable for effective home schooling; and

▪ the identified resources are adequate to support the child’s learning.

21. Part 6 of the Guidelines sets out the process to be followed in assessing applications, under the heading “Application and Assessment process”. There are two types of application: initial and renewal (this case concerns the latter). There is a flowchart with a timeline that sets out how the application is to be assessed once submitted. That includes the allocation of the application to an AP. The AP is to organise a home visit the purpose of which is said to be “to review the current and/or proposed educational program for the child; the child must be sighted during the visit unless there are exceptional and compelling circumstances”. Following that, the AP makes a recommendation to the Authority about home schooling registration which is considered and a decision is then made on the application.

22. Under the heading “preparing for the application to be assessed”, there is guidance to parents suggesting that they have available:

▪ the child’s educational program showing how it is based on NESA syllabuses;

▪ information about the child’s learning needs and how the educational program supports these needs;

▪ materials to show planning, supervising and recording teaching and learning experiences;

▪ materials to show the system for recording the child’s progress and achievement;

▪ materials to show how time is allocated to learning;

▪ information about how the home provides an effective learning environment; and

▪ materials to show how resources are adequate to support the child’s learning.

The Authorised Person’s focus and process

The focus of the Authorised Person’s assessment during the home visit is the educational program for the child and whether the requirements for home schooling registration are being met or, for new applicants, could be met. The Authorised Person does not assess the child.

During the process, the Authorised Person will discuss and review the educational program with the parent. Parents are encouraged to explain their approach and record keeping as relevant to the educational needs of the child and the requirements.

In particular, the Authorised Person will consider:

▪ information showing how the program has been and/or will be implemented, including records of learning activities and assessments of progress if the child is currently registered; and

▪ whether this information demonstrates that the requirements for registration have been and/or will be met.

…

For applications for renewal of registration, the Authorised Person will consider whether the available information demonstrates that the requirements for home schooling registration were met during the past or current period of registration and whether the requirements for registration would be met if a further period of registration were to be granted. Records of implementing the child’s educational program must be kept to show how the program has been delivered and how the requirements for registration are met.

…

During the assessment process, the Authorised Person must sight the child for whom registration is sought unless there are compelling reasons for not sighting the child. NESA will consider such reasons on the individual nature and merit of any particular case. In some cases, for experienced and successful home schoolers, NESA may consider assessing an application by documentation review if there are exceptional and compelling reasons for doing so. NESA will consider each case on its individual nature and merit. (emphasis added).

23. Other parts of the Guidelines set out a “curriculum overview” (Part 7); and Part 9 contains a curriculum for secondary education – years 7-10, while Part 10 deals with years 11-12. Part 12 of the Guidelines summarises the legislative basis for registration (as set out above), referring to statutory requirements in the Education Act and the role of the AP. It also refers to the Authorised Persons’ Handbook, a copy of which was also before the Tribunal (and thus available to the applicant).

The role of the Tribunal in conducting a review

24. Part 10 of the Education Act provides for “Administrative review of decisions” by the Tribunal. By s 107(1), an application may be made to the Tribunal for administrative review under the Administrative Decisions Review Act 1997 (NSW) (ADR Act) of certain decisions (and recommendations) identified in that section. These include, by s 107(1)(d), “a recommendation of an authorised person that the Minister refuse to register a child for home schooling”

25. Section 108 of the Education Act provides that on an application for the administrative review of a recommendation or decision, the Tribunal may (s 108(1)(a)): “confirm the recommendation, direction or decision” or, by s 108(1)(b), it may “in the case of an application for the administrative review of a recommendation of the Authority or other person or body—make a different recommendation to the Minister concerning the subject-matter of the application.” Section 108(2) provides that the section applies “to the exclusion of the provisions of sections 63 (Determination of administrative review by Tribunal) and 65 (Power to remit matters to administrator for further consideration) of the Administrative Decisions Review Act 1997 [ADR Act].”

26. It is generally the case that when determining an application for review, the Tribunal operates in accordance with s 63 of the ADR Act (see Civil and Administrative Tribunal Act 2013 (NSW), s 30), which provides:

63(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

27. In Board of Studies v ANC High School Pty Ltd (GD) [2013] NSWADTAP 8, the Appeal Panel of the Tribunal’s predecessor (O'Connor P, Fitzgerald, Judicial Member; and Antonios, Non-judicial Member) set out the provisions of ss 107 and 108 of the Education Act and noted in particular s 108(2) and its reference to the exclusion of s 63 of the ADR Act (at [14]-[20]). That means that there are only two possible outcomes of the review: the Tribunal can confirm the recommendation or it can make a different recommendation to the Minister. While this is different from the orders that can be made under s 63(3) of the ADR Act, this does not change the broad role of the Tribunal which is to determine what is the correct and preferable decision: see DFD v New South Wales Education Standards Authority [2018] NSWCATAD 48 at [77]-[78] and Lawler v NSW Education Standards Authority [2023] NSWCATAD 273 at [25]-[27].

28. One of the aspects of conducting merits review to determine what is the correct and preferable decision having regard to the material before it is that the Tribunal can take into account evidence/other material that was not before the primary decision maker, including material that postdates the decision under review (see Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31 at [37]-[38], [45]-[46] (Kirby J), [99] (Hayne and Heydon JJ), [143] (Kiefel J)).

The hearing and evidence before the Tribunal

29. The Respondent filed a bundle of documents pursuant to s 58 of the of the ADR Act on 25 November 2024. By directions made on 26 November 2024, the Tribunal, in addition to directing that the Respondent file a s 58 bundle, also made the following directions:

*The applicant to give the Tribunal and respondent any evidence including statements, documents and submissions on or before 24 January 2025;

*The respondent to provide submissions and any further evidence on or before 4 March 2025;

*The applicant to give the Tribunal and respondent any evidence and submissions in reply on or before 18 March 2025.

30. On 24 January 2025, the applicant provided the following documents:

(i)   A letter addressed to “to whom it may concern” from Dr Victor Yan, dated 23 January 2025, stating he has been the applicant’s son’s general practitioner since December 2018 noting that the child reported that the “anticipation of a home visit, and the actual home visit itself occurring, is causing him a great deal of stress and anxiety”. For that reason, Dr Yan indicated he was “supporting his mother’s application for “documentation only” (with no home visit) for the purpose of his home schooling registration”.

(ii)   A second letter addressed to “to whom it may concern” from Dr Victor Yan, dated 23 January 2025, stating he has been the applicant’s son’s general practitioner since December 2018. He noted that he had supported the transition to home schooling and its continuation. He also indicated that he had “sighted him for physical and mental assessment, and there is no evidence of child abuse or neglect for the purpose of home schooling registration”. He was noted to be overdue for several routine childhood immunisations which were in the process of being undertaken.

(iii)   A letter dated 23 January 2025 from Dr Debra Tattersall to state she had known the applicant and the child for “1 years” (sic) and that the child had been examined that day. “For the purpose of home schooling registration, I have performed a general and psychological examination. I have found no evidence of physical or emotional abuse or neglect. I support avoiding the need for a home visit because of potential psychological stress to [the child] at this time. I support allowing an alternative method of registration”

(iv)    A second letter dated 23 January 2025 from Dr Debra Tattersall to state she had known the applicant and the child for 11 years and that the child had been examined that day. “For the purposes of home schooling registration, I have performed a general and psychological examination. I have found no evidence of physical or emotional abuse or neglect”.

31. The applicant also filed a copy of the directions made by the Tribunal on 26 November (see paragraph 29 above).

32. The respondent filed written submissions on 4 March 2025. Neither the applicant nor the respondent filed any further written material prior to the hearing.

The respondent’s case at hearing

33. At the hearing, the respondent was invited to make its submissions first to ensure that the applicant (who was not legally represented) understood the basis upon which the decision under review was made, and why the respondent contended that the Tribunal should confirm that decision.

34. The respondent elaborated upon the written submissions and made the following additional points

1. In determining what is the correct and preferable decision on the review, the Tribunal should take account of the principles and objects set out in ss 4-6 of the Education Act;

2. While the Act makes provision for home schooling as an alternative to school attendance, that must occur within the context of the statutory framework set out in the Act and in the related policy material;

3. The respondent submits that the only course of action open to the Tribunal was to affirm the decision for two clear reasons.

1. First, while the respondent acknowledges that, in exceptional and compelling circumstances, an assessment can be made of a home schooling application (including for renewal) without a home visit (referring to pages 14-16 of the Guidelines), the applicant has provided no evidence to support any claim about the existence of exceptional and compelling circumstances. Moreover, the last time the applicant and her child were the subject of a home visit was 2019.

2. Second, even if it were the case that there was a basis for making the decision without there having been a home visit, the Tribunal was not in a position to change the decision as there was no material before it that could demonstrate that the home schooling requirements set out in Part 4 of the Guidelines (“requirements for registration”) were met. Specifically, the applicant had provided no information about the content of the home learning that had been and was proposed to be provided. There was no curriculum information nor was there material demonstrating how the requirements had to date been met. While it is a matter for the home school provider/parent to determine the manner in which the material is delivered, the content and outcomes are mapped against syllabuses by the Authority and must be assessed against those requirements.

4. The respondent contended that the four medical certificates (referred to above at [30]) were of limited relevance as they suggested an application other than the one that had been made and which was the subject of the matter before the Tribunal.

5. The respondent also reiterated that it is not the purpose of the home visit to assess or interview the child (see the extract above of Part 6 of the Guidelines): rather, it is to assess the suitability of the home learning environment (albeit it is noted that the child must be “sighted” as part of a home visit).

6. Given the absence of any material on which an assessment could have been made of the application (both in relation to a home visit and in relation to the content of the program and the outcomes to date - see Guidelines at 10/50), the respondent contended that the only decision that could be made by the Tribunal was to confirm the decision to refuse reregistration. However, the respondent also identified the possibility of the applicant making a fresh application and providing information sufficient to enable the respondent to assess the application. It was also open to the applicant to seek to have the application assessed purely on the papers, but only if she were able to establish that there were exceptional/compelling circumstances for doing so.

The applicant’s case at hearing

35. The applicant explained that she accepted the rationale for the requirement of a home visit. She insisted that she had agreed to the home visit but was required to cancel it as she had not received written notice sufficiently ahead of time.

36. The applicant explained that she required the written notice as she had had a number of safety issues, specifically to do with an experience of hacking. She told the Tribunal that she had “ripped the internet” out of her house as a partial response to those safety issues.

37. The applicant had intended to have members of the Home Education Association (HEA) present at the home visit but stated that she was not given sufficient notice to organise that (though she acknowledged that she was verbally given the date of the home visit before she asked for the written confirmation).

38. In response to a question from the Tribunal as to whether the applicant had considered submitting any further documentation in support of her review (aside from the four brief notes from the two doctors filed on 24 January 2025), she stated that she had been advised that she was not permitted to submit documentation. However, she acknowledged that she may have misunderstood this as she appeared to be referring to a “documentation-only assessment”, ie an assessment of her application without the need for a home visit to occur.

39. The Tribunal pointed out that the directions made on 26 November 2024 expressly provided her with an opportunity to provide evidence/other information in support of her review but the applicant told the Tribunal that she did not understand from that document that she could do so.

40. The applicant claimed at the hearing that she had had no communication with the first AP. However, she agreed that the person had tried to contact her but that she had not responded. She also acknowledged that she had had communication with the second AP (the one conducting the internal review) and that she had not provided any material about the content of the home schooling program. She appeared to consider that she could do so, in support of her review before the Tribunal, after the Tribunal hearing.

Consideration

41. As the respondent noted in its written and oral submissions, the applicant’s application has not been assessed by a home visit. The applicant acknowledged at hearing that she understands the need for a home visit. She also acknowledged that she was aware that there is provision made for an application to be assessed by reference only to documentary material. However, there is nothing in evidence to indicate that she has sought, much less established a basis upon which to have that course taken, in which instance she would need to establish that there are compelling or exceptional circumstances that warrant doing so.

42. Further, and independently of whether there is to be a home visit (which is a clear requirement set out in the guidelines, subject to the limited exceptional case being established), the applicant agreed that she had not at the time of the application, the internal review, or the Tribunal review, provided the material required in order to satisfy the Minister that the requirements for the approval of home schooling were satisfied. As noted above at [3], the applicant had stated when she lodged her application for internal review

In addition, I wish to submit Full documentation in support of the review, however, due to many technical breaches – I would like to submit it after further confirmed contact with NESA Home Schooling.

43. Following the lodgement of the application for internal review on 1 August 2024, nothing further was provided, including when there had been a date set for the home visit which did not go ahead following contact from the applicant requesting it be postponed the evening before it was to occur.

44. In her application to the Tribunal, dated 16 October 2024, the applicant stated in the section headed “Grounds for Application: I am seeking a review of the decision on the following grounds: Due to extreme and challenging personal circumstances where were beyond my control”.

45. The applicant did not provide any further information about those circumstances nor did she provide any written material to the Tribunal in support of her application for review, save for the four documents from the two doctors set out at [30] above.

46. As the Tribunal noted earlier, s 108 of the Education Act limits the Tribunal in cases of this nature to doing one of two things: it can confirm the recommendation or it can make a different recommendation to the Minister. The Tribunal would be able to make a different recommendation to the Minister only if it had material before it that demonstrated that the recommendation to refuse the application was not the correct and preferable recommendation, for example, if there was material that demonstrated that the statutory requirements for registration for home schooling were satisfied.

47. In the absence of any material to that effect, the Tribunal considers it has no option but to confirm the recommendation that the application to renew the applicant’s son’s home schooling be refused.

48. However, as noted at the hearing, and in the correspondence from the respondent to the applicant, the outcome of this review does not preclude the applicant from making a fresh application, supported by the relevant material.

Conclusion

49. On the material before the Tribunal, the Tribunal is satisfied that the correct and preferable decision is to confirm the recommendation to the Minister to refuse the application for (re)registration for home schooling.

Order

50. The recommendation under review is confirmed

**********

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: 14 April 2025