Yeshiva College Bondi Limited v NSW Education Standards Authority

Case •

[2022] NSWCATAD 270

•

15 August 2022

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

  • Amendment notes
Medium Neutral Citation: Yeshiva College Bondi Limited v NSW Education Standards Authority [2022] NSWCATAD 270
Hearing dates: 7, 8, 9, 17 and 20 June 2022
Date of orders: 15 August 2022
Decision date: 15 August 2022
Jurisdiction:Administrative and Equal Opportunity Division
Before: Dr J Lucy, Senior Member
Decision:

1.   The respondent’s recommendation that the registration of Yeshiva College, Bondi not be renewed is confirmed.

2.   The respondent’s recommendation that the registration of Yeshiva College, Bondi be cancelled is confirmed.

Catchwords:

ADMINISTRATIVE REVIEW – Registration of non-government schools – Where applicant is proprietor of a non-government school – Where respondent found that school did not comply with registration requirements – Where respondent recommended cancellation and non-renewal of school’s registration – Whether school is compliant with registration requirements – Whether cancellation and non-renewal were correct and preferable decisions

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Education Act 1990 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Child Protection (Working with Children) Act 2012 (NSW)

Children’s Guardian Act 2019 (NSW)

Ombudsman Act 1974 (NSW)

Teacher Accreditation Act 2004 (NSW)

Cases Cited:

ANC High School Pty Ltd v The Board of Studies [2012] NSWADT 125

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

Eagle Arts and Vocational College Incorporated v NSW Education Standards Authority [2018] NSWCATAD 297

Shi v Migration Agents Registration Authority (2008) 235 CLR 286

Texts Cited:

Nil

Category:Principal judgment
Parties: Yeshiva College Bondi Limited (Applicant)
NSW Education Standards Authority (Respondent)
Representation:

Counsel:
J Curtin (Applicant)
C Ronalds SC and D Fuller (Respondent)

Solicitors:
Mills Oakley (Applicant)
Lander & Rogers (Respondent)
File Number(s): 2021/00249714
Publication restriction: The disclosure of the name of any child currently or formerly enrolled at Yeshiva College other than to the parties and their legal representatives is prohibited.
The publication of the name or image of any child currently or formerly enrolled at Yeshiva College Bondi to the extent that that name or image forms part of the evidence given before the Tribunal, or is contained in documents lodged with the Tribunal or received in evidence by the Tribunal, is prohibited.

REASONS FOR DECISION

  1. The applicant, Yeshiva College Bondi Limited, is the proprietor of a non-government school, Yeshiva College, Bondi (Yeshiva College).

  2. In March 2019, the applicant applied for renewal of Yeshiva College’s registration. Inspections by inspectors of the respondent (NESA) in 2019 and 2020 identified concerns in relation to the school’s compliance with the registration requirements under the Education Act 1990 (NSW) (the Act). The school’s registration was twice extended for twelve months to give the applicant time to demonstrate compliance, then extended again for shorter periods after these proceedings had been commenced.

  3. In April 2021, an inspector found the school to be non-compliant with some of the registration requirements, including those in relation to governance and curriculum, and recommended non-renewal and cancellation of the school’s registration. In May 2021, NESA decided to recommend to the Minister that the school’s registration not be renewed and that it be cancelled. An internal review confirmed those decisions.

  4. The applicant applied to the Tribunal for a review of the non-renewal and cancellation decisions.

  5. The applicant remains non-compliant with some of the registration requirements, including in the areas of curriculum and governance. I cannot be satisfied that it is compliant with requirements concerning child protection. The purpose of those requirements is to ensure that children receive the education to which they are entitled, that the school is governed effectively and ethically and that the students’ welfare and safety is protected. I consider, as a matter of discretion, that recommendations should be made to the Minister not to renew and to cancel the school’s registration. Accordingly, I have confirmed NESA’s recommendations.

Background

  1. Yeshiva College is a school comprised of about 56 students from Kindergarten to Year 10. The children are educated in eight composite classes. Yeshiva College is a Chabad-Lubavitch Jewish school.

  2. Nine members of the teaching staff (some of whom are part-time) are accredited teachers. Other staff members, who are referred to as Jewish studies teachers, are not accredited teachers.

  3. In 2012, Rabbi Dr David Slavin (to whom I will refer as Rabbi Slavin) was appointed as Chair of the Board of Directors of the applicant. Rabbi Slavin is also a director of the Institute for Jewish Leadership and Education Association Inc (IJL).

  4. On 1 January 2016, Yeshiva College and IJL entered into a service agreement (the IJL Service Agreement). Under this agreement, IJL supplied some staff, including Jewish studies teachers, to the school.

  5. In July 2018, Dr David McGregor was appointed as principal of Yeshiva College.

  6. In March 2019, Yeshiva College applied for renewal of its registration.

  7. On 5 April 2019 and 30 July 2019, NESA conducted inspections at Yeshiva College. Dr McGregor was absent, on extended sick leave, so Rabbi Slavin represented the school at the inspection.

  8. On 7 August 2019, Yeshiva College provided NESA with a plan to address some of the concerns communicated to the College at the inspections.

  9. On 14 August 2019, Inspector Anita Yates provided a report identifying concerns in relation to the school’s compliance with the requirements for registration in the areas of staff, curriculum, safe and supportive environment and management and operation of the school. She recommended that the school’s period of registration be extended under s 55 of the Act until 31 December 2020.

  10. In August 2019, Joseph Segelman (known as Yossi Segelman) was appointed as the Business Manager of Yeshiva College Bondi Limited. He was employed full time and worked remotely from Los Angeles.

  11. On 4 September 2019, NESA’s Registration and Accreditation Committee (the Committee) considered Inspector Yates’ report and endorsed the recommendations in the report, with the result that the school’s registration period was extended to 30 December 2020.

  12. In February 2020, Mr Duncan Kendall, formerly Assistant Head of the Preparatory School at the Scots College Sydney, was engaged as Acting Principal of Yeshiva College, whilst Dr McGregor was on sick leave.

  13. On 16 March 2020, NESA conducted another inspection of Yeshiva College.

  14. Dr McGregor resigned from Yeshiva College and, on 5 June 2020, his employment at the school came to an end. Following Dr McGregor’s resignation, Mr Kendall was appointed as principal of Yeshiva College.

  15. In a report dated 7 September 2020, Senior Inspector Jane Williams (to whom I will refer as Inspector Williams) identified concerns in relation to the school’s compliance with the requirements for registration in relation to teaching staff, curriculum, proper governance and financial viability. She recommended that conditions be imposed on the school's registration in relation to:

  1. providing monthly updates to NESA regarding the school’s progress in addressing the compliance concerns; and

  2. advising parents/guardians of students at the school in writing of the extended period of registration, the reasons for the extended period of registration and the school's plan to address the compliance concerns.

  1. Inspector Williams also recommended that the Committee recommend to the Minister for Education and Early Childhood Learning (the Minister) that the registration of Yeshiva College be extended under s 55 of the Act until 31 December 2021. The purpose of this was stated to be to give the school further time to implement its June 2020 action plan for addressing compliance concerns.

  2. On 16 September 2020, the Committee decided to recommend to the Minister that conditions be imposed upon Yeshiva College (in accordance with Inspector Williams’ recommendation).

  3. On 16 October 2020, Yeshiva College sought internal review of the decision to recommend the imposition of conditions.

  4. On 5 November 2020, having conducted an internal review, Inspector Nicholas Perkins affirmed Inspector Williams’ recommendation to impose specific conditions on the school’s registration.

  5. On 8 December 2020, the NESA Board decided to accept the recommendations of Inspector Perkins. On the same day, the Director, School Registration and Accreditation, Anne Keenan, wrote to Yeshiva College advising of the Board’s decision.

  6. On 14 December 2020, the NESA Chief Executive Officer met with representatives of Yeshiva College to discuss concerns regarding the school’s compliance.

  7. The Minister decided to impose the recommended conditions on the school’s registration.

  8. On 9 February 2021, Rabbi Slavin signed a Yeshiva College conflict of interest declaration, which was to be completed by a responsible person who has a real or perceived or potential conflict of interest in undertaking the person’s duties. [1] Rabbi Slavin declared that he had a real conflict and described it as follows:

Children at the school

Director of IJL - Salary from IJL for Rabbinical Services

1. Section 58 documents, page 4716.

  1. On 30 March 2021, Inspector Williams conducted an inspection of Yeshiva College. In a report dated 29 April 2021, she recommended that Yeshiva College’s application for renewal of registration be refused and that its registration be cancelled.

  2. Inspector Williams indicated in her report that there were concerns about compliance in the areas of teaching staff, external providers, school curriculum, facilities, student welfare, attendance, responsible persons, financial viability, annual reporting and child protection legislation. She found the school to be non-compliant with the curriculum requirements, the requirements for premises and buildings and the requirements for proper governance. The Inspector also found that the School had not addressed the compliance concerns raised in the 2019 and 2020 inspection reports.

  3. On 10 May 2021, Yeshiva College provided a response to Inspector Williams’ report.

  4. On 12 May 2021, the Committee accepted Inspector Williams’ recommendations that the school’s renewal application be refused and that its registration be cancelled.

  5. On 8 June 2021, Yeshiva College applied for an internal review of those decisions.

  6. Inspector Brooke Prideaux was appointed to undertake the internal review. On 17 June 2021, an inspection of the school took place as part of the internal review.

  7. On 9 July 2021, Inspector Prideaux completed an internal review report. She made similar findings to those made by Inspector Williams. She also found that the school had not addressed the compliance concerns identified in 2019, 2020 and April 2021. Inspector Prideaux recommended that the Board of NESA recommend to the Minister that the registration of Yeshiva College be cancelled under s 59 of the Act and that its application for renewal of registration be refused under s 56 of the Act.

  8. On 29 July 2021, Rabbi Slavin provided NESA with the school’s response to the internal review report.

  9. On 3 August 2021, NESA recommended to the Minister that the School’s registration to operate as a non-government school for Kindergarten to Year 10 be cancelled (the Cancellation Decision), pursuant to s 59 of the Act. On the same day, NESA made a recommendation to the Minister that the School’s application for renewal of registration be refused pursuant to s 56 of the Act (the Non-Renewal Decision).

  10. On the same day, the applicant advertised for a NESA Compliance Officer. The advertisement stated that significant experience in NESA compliance management was essential to the role. [2]

    2. Segelman Affidavit, pages 18-19.

  11. On 31 August 2021, the applicant applied to the Tribunal for administrative review of the Cancellation Decision and the Non-Renewal Decision (together, the Decisions) under the Administrative Decisions Review Act 1997 (NSW) (ADR Act), pursuant to s 107 of the Act.

  12. On 20 September 2021, Ms Amalia Portelli commenced employment as the NESA Compliance Officer at Yeshiva College. Ms Portelli had previously held compliance manager roles for registered training organisations in the vocational education and training sector but did not have experience in NESA compliance management or in working in schools. [3]

    3. Transcript, 9 June 2022, page 239.

  13. On 25 October 2021, Yeshiva College provided undertakings to NESA as a condition of the extension of its registration until 8 April 2022. [4] The undertakings required Yeshiva College to provide certain information to NESA by 21 January 2022, including its working with children check register.

    4. Second Portelli Affidavit at [4].

  14. On 10, 11 and 12 November 2021, Ms Portelli conducted online training on new policies and procedures which she had developed. These included the new child protection policy, child protection procedures and the code of conduct for staff. [5]

    5. First Portelli Affidavt at [48].

  15. On 18 November 2021, Ms Portelli notified NESA of a change to the school’s responsible persons. She advised that Mr Joseph Segelman became a responsible person for the school on 15 August 2019.

  16. On 2 December 2021, Mr Segelman provided a fit and proper person statutory declaration to NESA. In that statutory declaration, he disclosed that he had declared bankruptcy on 21 May 2007 and in May 2021.

  17. On 9 December 2021, Ms Portelli conducted training for the school’s responsible persons. [6]

    6. Transcript, 9 June 2022, page 258.

  18. Mr Kendall resigned and left the school at the end of 2021.

  19. Ms Shaina Feldman, who was in 2021 Head of the Girls’ School at Yeshiva College, became acting principal of Yeshiva College at the beginning of 2022.

  20. On 24 January 2022, Ms Portelli conducted training for teachers and staff in respect of various new policies she had developed. [7]

    7. Second Portelli Affidavit at [19].

  21. On 3 March 2022, the applicant notified NESA of a breach of the undertaking provided on 25 October 2021 to record a person engaged in child-related work on the working with children check register. The person in question, a young rabbi, was undertaking work experience and was on the supervision roster for three weeks. His working with children check clearance was verified before he commenced at Yeshiva College, but the working with children check clearance register was not updated with his details.

  22. On 7 March 2022, the applicant notified NESA of another breach of the undertaking. A woman was engaged as a Jewish Studies teacher at Yeshiva College. Her working with children check clearance was verified before she commenced at Yeshiva College, but the working with children check clearance register was not updated with her details.

  23. On 4 April 2022, NESA wrote to Mr Segelman in response to his correspondence of 2 December 2021. [8] NESA informed Mr Segelman that the Committee had determined on 23 March 2022 that he was not a fit and proper person to hold the role of responsible person for the school. NESA provided a copy of the letter to Rabbi Slavin.

    8. Amended tender bundle, page 48.

  24. Shortly after receiving the letter, Mr Segelman tendered his resignation. However, Rabbi Slavin asked Mr Segelman to stay on at the school. It was agreed, in discussions with Rabbi Slavin and Mr Andrews, that Mr Segelman would stay on until the end of the financial year. Mr Segelman scaled back his activities from that time. He continued to be paid a monthly consultancy fee. [9]

    9. Transcript, 9 June 2022, pages 227-228.

  25. On 8 April 2022, Yeshiva College gave a further undertaking to NESA.

  26. On 27 April 2022, Ms Portelli provided further training to staff in policies and procedures, including a session on child protection training. The training was compulsory for NESA accredited teaching staff and optional for other staff.

  27. The Minister has extended the registration of Yeshiva College on a number of occasions whilst these proceedings have been on foot.

Evidence

  1. The parties relied upon an extensive amount of evidence.

  2. NESA filed a large number of documents under s 58(1) of the ADR Act (a provision which requires an administrator to lodge with the Tribunal documents in its possession or control which it considers to be relevant to the Tribunal’s determination of the application).

  3. The applicant relied upon affidavits made by Dr Slavin, Mr Kendall, Ms Portelli, Mrs Feldman, Mr Segelman, Mr Richard Andrews (a volunteer at Yeshiva College) and Hudson Digby (a solicitor acting for Yeshiva College).

  4. NESA relied upon affidavits of Stan Browne (the Acting Director, School Registration and Accreditation at NESA), Jane Williams and Brooke Prideaux.

  5. The parties also filed tender bundles and tendered some additional documents.

Hearing

  1. The hearing was conducted by audio-visual link over five days, due to COVID-19 restrictions. Oral evidence was given by the parties’ witnesses over the course of the hearing.

Relevant law

  1. Section 47 of the Act sets out the requirements for registration of a non-government school. Subsections 47(1) and (2) relevantly provide as follows

47 Registration requirements for non-government schools

(1) For the purposes of this Act, the requirements for the registration of a non-government school are as follows—

…

(b) each responsible person for the school, and any other person or body having similar functions in relation to the school as those of such a responsible person, is a fit and proper person or body,

(b1) policies and procedures for the proper governance of the school are in place,

…

(d) teaching staff for the school have the necessary experience and qualifications (having regard to accreditation under the Teacher Accreditation Act 2004 but without limiting such other matters as may be relevant),

…

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

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

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

(iii) school policies and procedures that ensure compliance with relevant notification requirements imposed in relation to persons employed at the school by Part 4 of the Children’s Guardian Act 2019 and the Child Protection (Working with Children) Act 2012, and

(iv) maintaining a student enrolment and attendance register,

…

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

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

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

…

(2) In deciding whether the requirements for registration will be or are being complied with at or in relation to a non-government school, the Authority or the Minister is to have regard to matters relating to the quality of student learning. Such matters include, but are not limited to, the following—

(a) the standard of teaching of courses of study provided at the school,

(b) student engagement in learning at the school,

(c) any matters identified in a risk assessment conducted by the Authority in relation to the school.

  1. The proprietor of a non-government school may apply to the Minister for renewal of the school’s registration (Act, s 54A(1)). The application must include the following (Act, s 54A(3)):

(3) The application must include information demonstrating—

(a) whether or not the school continues to satisfy the requirements for registration under section 47, and

(b) whether or not since the school’s registration was granted or last renewed, the school has complied with the terms and conditions of such registration.

  1. Within a reasonable time before the registration of a non-government school is to expire, NESA is to make a written recommendation to the Minister as to whether or not the registration should be renewed (Act, s 55(1)). If NESA is not satisfied that the requirements for, or the conditions of, registration are being complied with at the school, it may give the proprietor or principal of the school written notice that renewal of registration of the school will not be recommended until the matters specified in the notice have been addressed (Act, s 55(2) and (3)). The Minister, on NESA’s advice, may extend the period for which the school’s registration was granted or last renewed, in order to enable the matters concerned to be addressed (Act, s 55(4)).

  2. The Minister is to renew the registration of a non-government school if the Minister, having considered NESA’s recommendation and any decision of the Tribunal administratively reviewing NESA’s recommendation, is satisfied that the requirements for, and the conditions of, registration are being complied with at the school (Act, s 56(1)).

  3. The Minister may, on NESA’s recommendation, cancel the registration of a non-government school by written notice given to the proprietor or principal of the school (Act, s 59(1)). However, the Minister may not do so unless he or she is satisfied that the requirements for, or the conditions of, registration are not being complied with at the school (Act, s 59(2)).

  4. A responsible person for a school must notify another responsible person and NESA of the circumstances of certain events as soon as practicable after the event occurs (Act, s 63A(1)). That includes an obligation to notify a responsible person of the circumstances of a bankruptcy upon becoming bankrupt (Act, s 63A(1)(b)). A “responsible person” is defined as follows (Act, s 3(1)):

responsible person for a school means—

(a) the proprietor of the school and, if the proprietor is a corporation, each director or person concerned in the management of the school, or

(b) a member of the governing body of the school, or

(c) the principal of the school.

  1. NESA is empowered to make rules under s 25 of the Education Standards Authority Act 2013 (NSW). These may, amongst other things, “set out guidelines with respect to the requirements for registration, approval and accreditation under the education and teaching legislation” (Education Standards Authority Act, s 25(2)(a)). The rules do not have effect unless approved by the Minister for Education (Education Standards Authority Act, s 25(3)).

  2. NESA has made the “Registered and Accredited Individual Non-government Schools (NSW) Manual” (the Manual). The Manual contains information about the Act and NESA’s role in the registration process. It also contains material which could be described as “rules” made pursuant to the power in s 25 of the Education Standards Authority Act. The unchallenged evidence of Stan Browne is that the Manual has been approved by the Minister for Education as rules of NESA and also that a new version of the Manual came into effect on 1 January 2022. I accept that evidence.

  3. An application may be made to the Tribunal for an administrative review under the ADR Act of a recommendation of NESA that registration of a non-government school not be renewed or that it be cancelled (Act, s 107(1)(b), (c)). The Tribunal may, relevantly, confirm the recommendation or make a different recommendation to the Minister concerning the subject-matter of the application (Act, s 108(1)(a) and (b)).

  4. This order-making power applies to the exclusion of s 63 of the ADR Act (Education Act, s 108(2)). Nevertheless, the Tribunal’s role remains to make the correct and/or preferable decision at the time of the hearing (ANC High School Pty Ltd v The Board of Studies [2012] NSWADT 125 at [14]; Eagle Arts and Vocational College Incorporated v NSW Education Standards Authority [2018] NSWCATAD 297 at [29]; Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589; Shi v Migration Agents Registration Authority (2008) 235 CLR 286).

Broad overview of parties’ submissions

  1. NESA contended that Yeshiva College is not compliant with a number of registration requirements. These include:

  1. Teaching Staff: the requirement that teaching staff for the school have the necessary experience and qualifications (having regard to accreditation under the Teacher Accreditation Act 2004 (NSW) but without limiting such other matters as may be relevant) (Act, s 47(1)(d));

  2. Curriculum: the requirements relating to the minimum curriculum for a school providing primary education and for a school providing secondary education to students in Years 7 to 10 (Act, s 47(1)(j));

  3. Safe and supportive environment: the requirement that a safe and supportive environment is provided for students by means that include certain specified matters (Act, s 47(1)(g));

  4. Proper governance: the requirement that policies and procedures for the proper governance of the school are in place (Act, s 47(1)(b1));

  5. Responsible persons: the requirement that each responsible person for the school is a fit and proper person (Act, s 47(1)(b)).

  1. NESA submitted that Yeshiva College had a poor compliance history and that this demonstrates a persistence lack of willingness or ability to comply with the registration requirements in the Act. [10] In NESA’s submission, the school had a reactive approach which demonstrated the inadequacy of its compliance framework for self-identifying and responding to compliance issues, which in turn indicated its inadequacy for ensuring future compliance. [11] It submitted that the school’s compliance history is relevant for two main reasons:

  1. first, given the School's poor compliance history, the Tribunal should not accept that the School is compliant with the registration requirements based merely on documents such as policies and procedures, without evidence of implementation; and

  2. second, to the extent the Tribunal finds (as NESA submits) that the School is currently not compliant with all of the registration requirements, the School's poor compliance history is relevant to the Tribunal's exercise of discretion as to whether or not to recommend non-renewal or cancellation of registration, including because of what that history indicates about the School's likelihood of future compliance. [12]

    10. NESA’s submissions filed 25 February 2022 at [25].

    11. NESA’s submissions filed 25 February 2022 at [31].

    12. NESA’s submissions filed 25 February 2022 at [18].

  1. The applicant’s position was that it should be found to be compliant or, failing that, substantively compliant with each of the registration requirements. The applicant submitted that Yeshiva College had demonstrated, through the evidence in the proceedings, that it was capable of ongoing and independent compliance. [13]

    13. Applicant’s submissions dated 11 February 2022 at [92].

  2. It was submitted for the applicant that Yeshiva College is demonstrably committed to ensuring ongoing compliance with the requirements of the Act and the Manual. It said that this was evidenced in various ways, including by its creation of the role of NESA Compliance Officer, by its development of its primary and secondary curriculum and by addressing gaps and identifying failings in the school’s policies and procedures and ensuring that staff are adequately trained in the new policies. To the extent that there were any ongoing issues, in the applicant’s submission they were minor in nature and were not such as to justify cancellation of the school’s registration. [14]

    14. Applicant’s submissions dated 11 February 2022 at [5].

  3. The parties made detailed submissions about each relevant registration requirement, which are dealt with below.

Compliance with registration requirements

  1. The first issue for the Tribunal in its review of the Decisions is whether it is satisfied that the requirements for registration are being complied with at Yeshiva College (or, in respect of the Cancellation Decision, whether it is satisfied that those requirements are not being complied with) (Act, ss 55(2), 59). The registration requirements are mandatory (Eagle Arts and Vocational College Incorporated v NSW Education Standards Authority [2018] NSWCATAD 297 at [34]-[38]). The Manual provides that the main purpose of registration is to ensure that the requirements of the Act are being, or will be, met. [15]

    15. Manual, page 5; Stan Browne Affidavit, page 39.

Safe and supportive environment (s 47(1)(g))

  1. The registration requirement in s 47(1)(g) is that a safe and supportive environment is provided for students by means that include—

  1. school policies and procedures that make provision for the welfare of students, and

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

  3. school policies and procedures that ensure compliance with relevant notification requirements imposed in relation to persons employed at the school by Part 4 of the Children’s Guardian Act 2019 (NSW) and the Child Protection (Working with Children) Act, and

  4. maintaining a student enrolment and attendance register.

Compliance with child protection legislation – s 47(1)(g)(ii) and (iii)

  1. Section 47(1)(g)(ii) of the Act imposes a registration requirement that a safe and supportive environment is provided for students by means of persons who are employed at the school being employed in accordance with Part 2 of the Child Protection (Working with Children) Act. Part 2 of that Act provides, in s 9A(1), that an employer must not commence employing, or continue to employ, a worker in child-related work unless the employer has obtained and verified the worker’s relevant details and made a record of those relevant details. The worker’s “relevant details” include the working with children number of the worker’s clearance or the application number of the worker’s current application and the expiry date for each clearance (Child Protection (Working with Children) Act, s 9A(2)).

  2. A worker’s details are taken to have been verified only if the relevant details accord with the information relating to the worker recorded in the working with children register as at the date the record is made by the employer (Child Protection (Working with Children) Act, s 9A(3)). The “working with children register” is the register established under s 25 of the Child Protection (Working with Children) Act (Child Protection (Working with Children) Act, s 5(1)).

  3. Section 47(1)(g)(ii) of the Act imposes a registration requirement that a safe and supportive environment is provided for students by means of school policies and procedures that ensure compliance with relevant notification requirements imposed in relation to persons employed at the school by Part 4 of the Children’s Guardian Act and the Child Protection (Working with Children) Act. Part 4 of the Children’s Guardian Act deals with reportable conduct. It imposes obligations upon certain individuals and relevant entitles to make a report about certain allegations and certain conduct.

  4. The Manual provides in section 3.6.1 that a registered non-government school must have in place and implement policies and procedures to, amongst other things, ensure that staff who have direct contact with students are informed annually of their legal responsibilities related to child protection and to ensure that requirements to prevent, identify, report and investigate allegations of reportable conduct in compliance with the Children’s Guardian Act are made known to staff annually.

  5. As indicated above, the school applied for renewal of its registration in March 2019 and NESA conducted an inspection at the school on 5 April 2019. At that inspection, overseen by Inspector Yates, concerns were identified in relation to child protection.

  6. A meeting was held between Inspector Yates and representatives of the school including Rabbi Slavin and Richard Andrews on 2 May 2019. Handwritten minutes of that meeting [16] (apparently written by Sally Kelly, a NESA staff member) provide as follows:

    16. Williams Affidavit, JW4.

“AY [Anita Yates] showed records provided to satisfy NESA that all staff had WWCC [working with children check clearance].

Verifications were provided for some people and incomplete for others and missing for others. Records don’t show all mandatory fields. Some names don’t match – some have volunteer when other records show full clearance.

Rabbi – was updated one sent?

AY – not aware it’s been received. What is school doing? Is this reactive to NESA coming or is it real and lived?

Rabbi – When I started in 2012 I put C.P. as a priority. Previous directions in royal com. For child protection. When I spoke to parent re C.P. they under the view that perpetrators will be protected by authority. This template is an oversight.

AY. Need to have annual training for C.P.

Showed evidence provided by school for this. Year A – mandatory reporting. B – reportable conduct.

Must do both every year.

…”

  1. The accuracy of these notes has not been challenged and I accept that they record, in note form, what occurred at the meeting. I also accept that Inspector Yates’ observations about the incomplete and missing working with children check verifications are correct. It was not submitted that they were incorrect and there is no evidence to the contrary.

  2. On 7 August 2019, [17] in response to concerns expressed by Inspector Yates, Rabbi Slavin provided a one-page plan to address concerns identified in the 2019 inspection process. He stated that child protection policies and records would be reviewed and updated by Mrs Kaye prior to the end of Term 3 2019. [18]

    17. Section 58 documents, Tab 3-B, p 36.

    18. Williams Affidavit, Annexure JW-3.

  3. Inspector Yates’ report of 14 August 2019 stated that the school’s child protection procedures identified the principal as responsible for conducting verifications of working with children check clearances including maintenance of the working with children check register and clearances. However, during the inspection, office staff indicated that they had responsibility for this. The report also found that not all staff had provided a sign-off sheet acknowledging that they had read and understood the school’s child protection policy, even though the school’s procedures stated that all staff members are required to do that.

  4. Inspector Yates also observed that the school’s child protection policy contained limited procedural details in relation to how staff are informed of their legal responsibilities in relation to child protection; following up staff who had not received annual child protection training and verification of working with children check clearances and maintenance of records. Further, the school's child protection policy and procedures did not reflect the practices employed by the School in relation to informing staff annually of their obligations relating to child protection and procedures and maintenance of working with children check clearances. [19]

    19. Section 58 materials at Vol 1, tab 3B, page 36.

  5. In September 2020, Inspector Williams found that the school was compliant with the requirement to have in place and implement policies and procedures to ensure that it meets its legislative obligations in relation to child protection.

  6. When Inspector Williams made another inspection report on 29 April 2021, however, she noted that the school’s child protection policy, provided to NESA on 22 and 26 February 2021, referred to legislation which was not in force. She considered this to be a “significant error” because it meant that the School’s proprietor had failed to ensure that staff were informed of their obligations under the correct legislation in a critical area of operation. She stated that the School had been advised of this change at the inspection in 2020.

  7. The child protection policy provided to NESA in March 2021 referred to the correct legislation. [20] However, it was a template policy which had not been adapted by the school and lacked school-specific procedures. [21] Inspector Williams reported that only fourteen staff members attended child protection training, whilst the school’s records identified that 25 staff members were engaged in child-related work. [22]

    20. Williams Affidavit [60]-[61]. See also section 58 materials at Vol 1, tab 1, p 8 (report p 8 of 18).

    21. Section 58 materials at Vol 1, tab 1, p 8 (report p 8 of 18).

    22. Section 58 materials at Vol 1, tab 1, p 9 (report p 9 of 18).

  8. The register of working with children check clearances provided to Inspector Williams identified that the school had verified employee working with children check clearances on 18 March 2021, despite many of the staff having been employed well before that date. The school could not provide evidence of previous verifications being completed prior to the employment of staff. The school had not provided evidence of a verification of a martial arts teacher, despite the inspector requesting this.

  9. In her internal review report date 9 July 2021, [23] Inspector Prideaux found that the school had not addressed all of the compliance concerns about child protection which were identified in Inspector Williams’ April 2021 report. [24] She reported that the updated child protection policy did not describe the school’s processes necessary for staff to know how to implement or comply with the requirements set out in the policy. It did not, for example, provide documented processes in relation to obtaining working with children check clearance details from incoming staff or identify who was responsible for child protection training and when that training would occur. The inspector considered that the ongoing deficits in the policies placed the safety and welfare of students at risk. [25]

    23. Section 58 materials at Vol 2, tab 74, p 1770.

    24. Section 58 materials at Vol 2, tab 74, p 1790.

    25. Section 58 materials at Vol 2, tab 74, p 1790.

  10. Inspector Prideaux observed that, based on the records provided by the school, it appeared that the school may not currently have a working with children check clearance for all persons in child-related work at the school. She identified two individuals working at the school form whom there was no evidence of a clearance. One of these individuals, who was not a NESA accredited teacher, was allocated to teach English Parsha and PDHPE to the Year 6/8B class on Mondays, English and Art on Tuesdays, and English Parsha on Thursdays. In addition, he was rostered for yard supervision on four separate occasions on Mondays, Tuesdays and Thursdays. [26]

    26. Section 58 materials at Vol 2, tab 74, p 1791.

  11. Inspector Prideaux’s review of the register of working with children check clearances identified “numerous issues and inconsistencies” including incorrect dates and no evidence that the school held a working with children check clearance at all times for four people. [27] Thirteen of the twenty-five records on the register identified an incorrect date for the most recent verification completed by the school; and no evidence was provided to confirm that the school completed a working with children check clearance prior to three people commencing at the school. [28]

    27. Section 58 materials at Vol 2, tab 74, pp 1791-1792.

    28. Section 58 materials at Vol 2, tab 74, pp 1791-1792.

  12. The records also provided grounds to doubt whether all staff members had signed an acknowledgement that they had received, read and understood the school’s child protection policy. The records provided to the inspector identified that seven of the thirty people working at the school had signed such an acknowledgement. [29] There was evidence of fourteen people attending child protection training, but no evidence of a follow up session for those who did not attend.

    29. Section 58 materials at Vol 2, tab 74, p 1792.

  1. Inspector Prideaux concluded that the school was not complying with s 47(1)(g)(ii) and (iii) of the Act.

  2. I accept all the specific findings made by Inspector Yates, Inspector Williams and Inspector Prideaux, outlined above. These were not the subject of any serious challenge by the applicant. There was also some acknowledgement, by the applicant’s witnesses, that the school was not compliant at various times with the registration requirements in s 47(1)(g)(ii) and (iii) of the Act.

  3. Mr Kendall agreed in cross examination that, in September 2021, the school’s child protection policy was not up-to-date and did not identify the person to whom reports should be made. [30] He agreed that it was a critical policy and that it was used as the basis for training staff at staff development days. [31]

    30. Transcript, 7 June 2022 at page 81.

    31. Transcript, 7 June 2022 at page 82.

  4. Ms Portelli gave evidence that she drafted a new child protection policy for Yeshiva College in October 2021, using a precedent from the Association of Independent Schools. She also drafted a Child Protection Procedures document to ensure that staff members were aware of how to implement the policy. [32]

    32. Portelli first affidavit at [31]-[33].

  5. On 10, 11 and 12 November 2021, Ms Portelli conducted online training on the Child Protection Policy and Procedures and Code of Conduct. [33] She accepted, when asked about this in cross examination, that it is critical to the welfare of students that these documents are properly understood by staff members and properly implemented. [34] She also accepted that the training on the child protection policy and the code of conduct lasted 20 minutes and “agreed somewhat” that that was not adequate to inform staff about the policies and procedures. [35] Staff members did a quiz following the training and gave wrong answers to about 20% of the questions, which Ms Portelli considered to be a major problem. [36]

    33. Portelli first affidavit [48].

    34. Transcript, 9 June 2022, page 246.

    35. Transcript, 9 June 2022, page 247.

    36. Transcript, 9 June 2022, page 247.

  6. Ms Portelli annexed to her affidavit affirmed on 7 December 2021 copies of each verification of working with children check clearances for all staff, contractors and volunteers at Yeshiva College. [37] She stated that, as NESA compliance manager, she was responsible for maintaining the working with children check register. She provided a copy of the register identifying what she said were correct dates for verifications. She stated that she had created a new onboarding process whereby staff would need to complete a “WWCC – Screen Declaration Form” before commencing at Yeshiva College. [38]

    37. Portelli first affidavit [38] and Ex AMP1, pp 141-197.

    38. Portelli first affidavit [40]-[45], Ex AMP1, pp 199 and 205 to 224.

  7. Inspector Prideaux responded to the school’s evidence in an affidavit filed on 21 December 2021. In her view, the evidence indicated that each staff member currently engaged at the school in child-related work had a current working with children check clearance verified by the school. However, she identified certain inconsistencies in the school’s records. These included differences between the verification dates recorded in the working with children check register and those on the printed copies of the verifications. Inspector Prideaux commented that the archived working with children check clearance register records were mostly incomplete. She also pointed out that there were no verification records for a casual teacher last employed by the school in Term 2, 2021.

  8. Inspector Prideaux commented that there was no evidence of staff members having been provided with a copy of the new child protection policy and procedures (introduced in October 2021), the code of conduct and statement of commitment because the respective signed acknowledgement forms were not provided. [39] Although a training session about the new child protection policy was held, not all staff participated in it. Those who did not participate included the cleaners, maintenance staff and Rabbi Slavin. [40] Further, the school’s complaints handling policy (on the school’s website) referred stakeholders to the child protection policy for raising complaints about reportable conduct or staff misconduct, and the child protection policy was not available on the school’s website. [41]

    39. Prideaux first affidavit [78].

    40. Prideaux first affidavit [78].

    41. Prideaux first affidavit [79].

  9. In reply evidence, in an affidavit affirmed on 11 February 2022, Ms Portelli produced, for the casual teacher employed in Term 2, 2021, a copy of her working with children check clearance. However, she stated that the casual teacher’s working with children check clearance appeared to have been provided by the teacher herself, and she could not locate evidence of the clearance having been obtained by Yeshiva College. She stated that the process she had implemented for onboarding new staff was designed to ensure that no staff commence at Yeshiva College without a clearance first being obtained. [42]

    42. Second Portelli Affidavit [27].

  10. Ms Portelli annexed to her affidavit signed acknowledgement forms for the staff who were provided with training. [43] In response to the concern expressed by Inspector Prideaux that not all staff participated in the child protection training session, Ms Portelli provided evidence that she conducted the relevant training for Rabbi Slavin on 25 January 2022, for the facilities manager on 4 February 2022 and for the cleaner on 9 February 2022. The child protection policy had also been uploaded to the school’s website.

    43. Second Portelli Affidavit [29].

  11. In an affidavit dated 6 June 2022 (the day before the hearing commenced), Ms Portelli provided evidence of the training session on child protection training which she held on 27 April 2022, which was compulsory for NESA accredited teaching staff and optional for other staff. [44] She also provided another updated child protection policy (which states that it was updated in March 2022).

    44. Third Portelli Affidavit [8]. See also Transcript, 9 June 2022, page 252.

  12. In an affidavit dated 14 June 2022, Inspector Prideaux commented that no evidence had been provided that all staff had received, read, understood and agreed to comply with the updated child protection policy. She also expressed concerns that the child protection training was compulsory for NESA accredited teaching staff and optional for other staff. The Manual requires all staff who have direct contact with students to be informed annually of their legal responsibilities related to child protection. In her view, the training materials provided did not address all the child protection responsibilities of the school’s staff as required by the Manual. Inspector Prideaux considered it to be of “serious concern” that the school had not required any of its newly appointed staff to undertake training in child protection unless they were appointed as a NESA accredited teacher.

  13. Ms Portelli accepted, when being cross examined, that there were some casual teachers who never received child protection training whilst they were at Yeshiva College. [45] She also agreed with the proposition put to her in cross examination that there were some teachers working at the school without any training. [46] Ms Portelli clarified that the training for the Office of the Children’s Guardian module was mandatory for NESA accredited teachers only, but all other child protection training was mandatory for all staff. [47] She acknowledged that many Jewish studies teachers and administrative staff did not attend the session on child protection training. [48] She also accepted that the requirement to attend child protection training at the start of each term in the updated child protection policy only applied to NESA accredited teachers and not to Jewish studies teachers. [49]

    45. Transcript, 9 June 2022, page 249.

    46. Transcript, 9 June 2022, page 255.

    47. Transcript, 9 June 2022, page 255.

    48. Transcript, 9 June 2022, page 256.

    49. Transcript, 9 June 2022, page 256.

  14. The evidence disclosed that the working with children check clearance of a Jewish studies teacher who commenced on 21 October 2021 was not verified until 11 November 2021. [50] As Ms Portelli accepted, this was a breach of the school’s obligations under the Child Protection (Working with Children) Act and a breach of the school’s own policy. [51] Having been taken to a number of errors which had been made in relation to the details in the school’s working with children check register and archive register, Ms Portelli agreed with the proposition put to her by Ms Ronalds SC that the school’s child protection procedures were not being implemented properly and that she had not been implementing them properly. [52]

    50. Transcript, 9 June 2022, page 265.

    51. Transcript, 9 June 2022, page 265.

    52. Transcript, 9 June 2022, page 270.

Findings

  1. The school has a history of poor compliance with the registration requirements in s 47(1)(g)(ii) and (iii) since the inspection in April 2019, over three years ago.

  2. The requirement that employees of the school be employed in accordance with Part 2 of the Child Protection (Working with Children) Act, and thus that the employer has obtained and verified the worker’s relevant details, was not complied with at the following times:

  1. On 2 May 2019, the school provided working with children check verifications for some, but not all, of its employees, and some of the verifications it provided were incomplete. The records did not show all mandatory fields and some names did not match. Rabbi Slavin was made aware of this;

  2. In August 2019, office staff had responsibility for conducting working with children check clearances, contrary to the school’s child protection procedures, which stated that the principal was responsible for this;

  3. On 18 March 2021, the school verified employee working with children check clearances, even though many of the staff having been employed well before that date. The school could not provide evidence of earlier verifications;

  4. On 29 April 2021, when Inspector Williams made her report, the school had not provided any evidence of verifying the martial arts teacher’s working with children check clearance, from which I infer that this had not been done;

  5. On 9 July 2021, when Inspector Prideaux completed her internal review report, the school had not provided evidence that it had working with children check clearance for all persons in child-related work at the school. One of the persons for whom there was no working with children check clearance was allocated to teach classes;

  6. The working with children check register held by the school when Inspector Prideaux conducted her internal review did not include a record of all historical persons who were employed or engaged in child-related work at the school; it included incorrect dates for verifications and showed that the school had failed to verify some clearances;

  7. The working with children check clearance of a Jewish studies teacher who commenced on 21 October 2021 was not verified until 11 November 2021 (as Ms Portelli confirmed at the hearing);

  8. By 21 December 2021, the school’s records indicated that each staff member currently engaged at the school in child-related work had a current working with children check clearance verified by the school, but there were discrepancies between the verification dates recorded in the working with children check register and those on the printed copies of the verifications and no verification records for one casual teacher (it being later confirmed by Ms Portelli that, although the school had a copy of the teacher’s clearance, there was no evidence of that teacher’s clearance having been obtained by the school);

  9. In breach of the undertakings provided to NESA on 25 October 2021, the applicant failed to record two persons engaged in child-related work on the working with children check register (as notified to NESA on 3 and 7 March 2022). One was a person undertaking work experience at the school in February 2022 for three weeks, who was named on the school supervision roster. The other was a Jewish studies teacher who commenced work at the school on 17 February 2022, and whose name was not included on the register until 7 March 2022. [53]

    53. Transcript, 9 June 2022, page 268.

  1. The school was non-compliant with s 47(1)(g)(ii) in 2019. Despite Rabbi Slavin being put on notice of this in a meeting with Inspector Yates in August that year, the school did little, if anything, to address the failings in this area. Its plan of 7 August 2019 to address identified non-compliances did not include any measure to address its failure to comply with its legislative obligations under the Child Protection (Working with Children) Act.

  2. It may be inferred from the school’s verification of records of many existing employees in March 2021 that, before that date, many verifications had not been completed. That is a serious breach of the school’s legislative obligation under s 9A of the Child Protection (Working with Children) Act not to commence employing, or continue to employ, a worker in child-related work unless the employer has obtained and verified the worker’s relevant details and made a record of those relevant details. As recently as July 2021, the school allowed a Jewish studies teacher who was not NESA-accredited to teach classes without evidence of having a working with children check clearance. Irrespective of whether there was a NESA-accredited teacher with the Jewish studies teacher at all times, this was another serious breach of the registration requirements and of the law.

  3. The failings in this area identified by Inspector Prideaux in July 2021 indicate that, at that time and earlier (as demonstrated by the historical records), the school was putting the safety of children at risk, by failing to ensure that all persons at the school involved in child-related work had clearances and that those clearances had been verified.

  4. Since commencing at the school in September 2021, Ms Portelli has had a positive impact upon the school’s compliance in this area. As the NESA Compliance Officer, she is responsible for maintaining the working with children check register and for the school’s child protection policies and procedures. [54] She took steps to ensure that the records identify the correct dates for verifications and developed a new process for onboarding new staff to ensure that the school complies with its obligations under the Child Protection (Working with Children) Act. [55] This has led to a greater degree of compliance. However, Ms Portelli mainly works remotely, going to the school once fortnightly for a staff meeting, and she relied, until at least February this year, upon the school’s administration assistant to onboard new staff. [56] That system was not entirely effective. Ms Portelli’s evidence at the hearing was that she had changed the system whereby the administration assistant was doing clearances then emailing them to Ms Portelli to avoid the “errors that have occurred.” [57] At the time of the hearing, she was onboarding new teachers by video link. [58]

    54. First Portelli Affidavit at [40].

    55. First Portelli Affidavit at [39]-[44].

    56. Second Portelli Affidavit at [28]; Transcript, 9 June 2022, page 242.

    57. Transcript, 9 June 2022, page 285.

    58. Transcript, 9 June 2022, page 243.

  5. Notwithstanding the improvements which have been made to the school’s systems in this area, the applicant has continued to breach the legislative requirements in respect of employees under the Child Protection (Working with Children) Act. [59] The non-compliances notified to NESA in March 2022 are particularly concerning as they occurred after these proceedings had commenced and in breach of the applicant’s undertakings. They indicate that the applicant is unable to comply with its obligations, even when under external scrutiny and when its ongoing registration is at stake. Ms Portelli admitted that the omission in relation to the person doing work experience at the school for three weeks was only identified by the school after NESA had raised the issue in its submissions in these proceedings. [60] This is consistent with a pattern of the school’s compliance activity being predominantly reactive rather than proactive. [61]

    59. First Portelli Affidavit at [39]-[44].

    60. Transcript, 9 June 2022, page 268.

    61. Transcript, 9 June 2022, page 240.

  6. I am not satisfied that the school is currently compliant with the registration requirement in s 47(1)(g)(ii) of the Education Act. The school depends almost entirely upon Ms Portelli to ensure its compliance with this requirement. However, it is the administration assistant who is on-site and whose office staff must report to when entering Yeshiva College[62] and this is a possible explanation for the breaches of the school’s undertakings. There is nobody else at the school who demonstrates any understanding of what is necessary to comply with the registration requirements in this area. Other than by employing Ms Portelli after NESA had recommended that the school’s registration be cancelled, Rabbi Slavin has not demonstrated any capacity to address NESA’s concerns about non-compliance in this area. Ms Portelli’s concession that the school’s child protection procedures were not being implemented properly and that she had not been implementing them properly is consistent with the evidence.

    62. Second Portelli Affidavit at [28].

  7. As for the registration requirement in s 47(1)(g)(iii), that the school’s policies and procedures ensure compliance with relevant notification requirements in child protection legislation, the relevant history is as follows:

  1. When Rabbi Slavin met with Inspector Yates in May 2019, the school was conducting training in mandatory reporting every second year and training in reportable conduct every other year which was, as Inspector Yates pointed out, in breach of the requirement in the Manual that both be provided every year;

  2. In August 2019, the school was not complying with its own policies and procedures which required all staff members to provide a sign-off sheet acknowledging that they had read and understood the school’s child protection policy; and the policies and procedures were deficient in procedural details as to how the policies were to be implemented;

  3. In September 2020, the school was found to be compliant with this obligation by Inspector Williams. The school’s child protection policy as at September 2020 is not in evidence; however, the December 2020 version of the policy referred to the Ombudsman Act 1974 (NSW) and required the principal to notify the NSW Ombudsman of reportable conduct allegations. On 1 March 2020, Part 3A of the Ombudsman Act was repealed and from that time reports were to be made to the Children’s Guardian. It may be inferred that the school’s policy in September 2020 also provided for reports to be made to the Ombudsman and was therefore non-compliant;

  4. In February 2021, the school’s child protection policy referred to the wrong legislation (even though the school had been informed of the legislative change at the inspection in 2020);

  5. In March 2021, the school’s child protection policy referred to the correct legislation, but lacked school-specific procedures;

  6. In March 2021, the school was not ensuring that all of its staff members who were engaged in child-protection work were attending child protection training (just over half attended, 14 out of 25);

  7. In July 2021, the school’s child protection policy continued to lack procedural details. It did not describe the school’s processes for implementing or complying with the requirements set out in the policy. Further, only seven of the thirty people working at the school had acknowledged that they had received, read and understood the school’s child protection policy and only fourteen had attended child protection training;

  1. It was put in closing submissions for the school that there was evidence of systemic change within the school and a commitment to continuing along that positive compliance trajectory. [186] Ms Curtin submitted that the school had encountered a number of challenges, including with respect to finding and keeping staff members to lead the school and to assist with the development of its curriculum, and that the COVID-19 pandemic had had a significant impact. [187]

    186. Transcript, 20 June 2022, page 460.

    187. Transcript, 20 June 2022, page 459.

  2. There has certainly been an increase in the degree of the school’s compliance with the registration requirements, mainly due to the work of Ms Portelli, but others have also taken action to address the areas of non-compliance identified by NESA. However, the actions taken by the school are not sufficient to achieve compliance with all of the registration requirements or to provide any assurance that the school will be compliant, or substantively compliant, in the future.

  3. The COVID-19 pandemic may have had some impact upon the school’s operations and may have made it more difficult, at times, for the school to work towards achieving compliance. However, the pandemic alone does not explain the school’s failure to address the areas of non-compliance effectively.

  4. Inspector Prideaux expressed the view that the school’s responsible persons and the school’s leadership team do not have a demonstrated understanding of the fundamental requirements for school registration and what is required of the school’s operation to comply with those requirements. [188] Inspector Williams gave evidence that, in her six years at NESA and the Board of Studies, she had never observed such a widespread and continuing failure by a school to address compliance concerns raised by NESA. [189] I give some weight to those opinions. As will be apparent from my reasons, I share Inspector Prideaux’s view about the lack of understanding of the school’s responsible persons.

    188. Prideaux first Affidavit at [44].

    189. Williams Affidavit at [79].

  5. The school’s failure to comply with the registration requirements in the areas of the minimum primary and secondary curriculum is serious because it indicates that its students are not receiving the education they are required, by law, to be given. Section 4 of the Act provides that, in enacting the Act, Parliament has had regard to the principles that every child has the right to receive an education and that it is the duty of the State to ensure that every child receives an education of the highest quality (among other principles) (Act, s 4). That duty is reflected in the Act by the imposition of registration requirements for non-government schools.

  6. My lack of satisfaction that Yeshiva College is satisfying the registration requirements in s 47(1)(g)(ii) and (iii) relating to child protection is also a strong factor in favour of exercising my discretion to confirm NESA’s recommendations. Those registration requirements are designed to protect the safety and welfare of students. My lack of satisfaction that the school is complying with these requirements means that I cannot be confident that students’ safety and welfare are not thereby being placed at risk. Further, I am satisfied that the school’s lack of compliance with the requirements in the Act and the Manual concerning the maintenance of a student enrolment and attendance register places students’ safety and welfare at risk.

  7. Finally, the school’s non-compliance in the area of governance is significant and long-standing. The circumstance that Rabbi Slavin is not a fit and proper person is a strong reason to confirm NESA’s recommendations. Further, the applicant is not implementing policies with reference to maintaining information to demonstrate that the school's responsible persons and governing body have the experience and expertise to administer a school that provides an education for school students (Manual, s 3.9.1). In these circumstances, I would not exercise my discretion against recommending cancellation or non-renewal of the school’s registration.

  8. The parties appeared to be of the view that the Tribunal had the power to recommend that conditions be imposed on the school’s registration as an alternative to confirming NESA’s recommendations for cancellation and non-renewal. It may be that the Tribunal has power to do this under s 108(1)(b) of the Act. However, it is not necessary for me to decide this, as I would not impose conditions even if I had the power to do so. In my view, for the reasons given above, the correct and preferable decision is to confirm NESA’s recommendations (Act, s 108(1)(a)).

Orders

  1. I make the following orders:

  1. The respondent’s recommendation that the registration of Yeshiva College, Bondi not be renewed is confirmed.

  2. The respondent’s recommendation that the registration of Yeshiva College, Bondi be cancelled is confirmed.

**********

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

Registrar

Endnotes

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

Amendments

15 August 2022 - Typographical errors

16 August 2022 - Typographical errors on coversheet and at paragraph 172 corrected

Decision last updated: 16 August 2022

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