ANC High School Pty Ltd v The Board of Studies

Completion of prohibited person declaration 62A second example of alleged non-compliance with s 47(g) was said to be that ANC has not ensured that it is providing a safe and supportive environment in relation to employment screening. Section 47(g)(ii) requires ANC to ensure that staff are employed in accordance with Division 2 of Part 7 of the Commission for Children and Young People Act 1998 (CCYP Act). Section 3.6.1 of the Manual lists, as evidence of compliance with s 47(g), ensuring that the school meets the employment screening and notification requirements of the CCYP Act. 63Section 33D of the CCYP Act makes it an offence for an employer to commence employing a person in child-related employment without first requiring that person to disclose whether or not he or she is a prohibited person. Disclosure is sometimes made through a document entitled "Prohibited Employment Declaration". An employer is also required to carry out background checking for people commencing paid work that primarily involves direct and unsupervised contact with children under the age of 18: CCYP Act, s 37. 64During cross-examination, Mr Wakeling, the principal of ANC, was shown a blank copy of a document headed "Prohibited Employment Declaration" at page 184 of the OPPM. He was asked whether he signed a form like that before starting work at ANC. His answer was that "We did a child protection - working with children check." He said it was not necessary for him to fill in a Prohibited Employment Declaration and he had never signed such a document. 65The Board also questioned Ms Wang, the Administration Manager at ANC, as to whether she had signed a Prohibited Employment Declaration. Her evidence was that she did not know whether she had signed such a form. 66ANC provided evidence that they had requested the NSW Department of Education and Communities to provide "Working with Children Background Checks" for nine employees including Mr Wakeling and Ms Wang. The Department notified ANC in each case that the background check found no information to suggest that the applicant posed a particular risk to children. 67The Board submitted that Mr Wakeling's failure to complete a Prohibited Employment Declaration is inconsistent with s 33D(1) of the CCYP Act. That constitutes a non-compliance with s 47(g)(ii) which requires that staff be employed in accordance with Division 2 of Part 7 of that Act. Section 33D(1) is in that Division.

School hours 68A third matter that was said to relate to the provision of a safe and supportive environment was inconsistencies in policy documents as to the hours that students were required to attend school. 69In various places, the OPPM indicated that the school hours were from 9am to 3.00pm (OPPM p 29); 9.00am to 4.30pm (Student Handbook 2012, p 305) and 9.10am to 4.00pm (Student Handbook 2012, p 306). 70Ms Shead's response to these inconsistencies was that when students attend orientation they are told the correct times and given a timetable. Mr Wakeling also acknowledged that the information in the OPPM and the Student Handbook was inconsistent with the timetables that students were given at orientation. 71ANC submitted that the inconsistencies in relation to school hours in the OPPM, the Student Handbook and the timetable do not amount to non-compliance with the requirements of registration. We agree. There is nothing in the Act or the Manual about accurately communicating school hours. For the environment to be safe, students need to be adequately supervised when at school. Inaccuracies may lead to confusion about the times that students are required to attend. However, we are not satisfied that students were at school unsupervised because of a misunderstanding about those hours. On the contrary, the oral evidence, which we accept, was that students knew the hours that they needed to attend from the timetables they were given at orientation.

Failure of ANC to implement its policies in relation to a safe and supportive environment 72The Board raised eight matters under this heading all of which will be or have been addressed elsewhere in this decision. The only outstanding matter is the implementation of policy in relation to absenteeism. 73We accept that although the requirement to keep a register of attendances is not a "requirement of registration", the provision of a safe and supportive environment in s 47(g) includes policies, and their implementation, relating to absenteeism. 74The Board had no criticism of ANC's policies in the OPPM in relation to monitoring and enforcing attendance and dealing with absenteeism. Those policies reflect, and in some respects augment, the requirements in the Manual. However the Board did take issue with the implementation of those policies. In particular, the OPPM states that "Students must account for all absences. All medical absences must be supported by a "Medical Certificate" from a registered Medical Doctor. Dubious certificates from non-MD's will not be accepted." 75ANC relied on a copy of the current attendances register, data from 2010 and 2011, copies of emails and letters sent to enforce attendance and oral evidence. For the first five weeks of 2012, the Board analysed the data relating to attendance. We accept that analysis. For the Year 11 students, out of a possible 3,780 periods of attendance, students were present for 1,936 periods, absent for 1,659 periods and there were a further 185 periods of absence for a flexible timetable. For Year 12 students, out of a possible 2,520 periods, students were present for 1,315 periods, absent for 815 periods and there were a further 390 periods of absence for a flexible timetable. 76Mr Wakeling described the level of absenteeism with overseas students as "an ongoing challenge". He gave evidence that every Monday he sends emails to students asking them to explain their absences. He provided examples of such emails and said that if he did not receive a response, or the absence was unexplained, he recorded that fact on the attendance register. 77Despite this evidence, Mr Wakeling produced only one email which was actually addressed to a student for which he had received a reply. The student in that case gave as the reason for being absent on two days, "part-time job". The reason for being absent for another four days was said to be through "sickness". This student, YW, was marked present on the roll for some of those days. 78Mr Wakeling produced other emails which he purportedly sent to students but for which no response was provided. We doubt whether these emails were actually sent. Apart from the email referred to in the previous paragraph, none of the emails contain the email address of the student. If they were sent, several were sent incorrectly because the student was recorded as being present on one or more of the days identified in the emails. One of the emails which was purportedly sent to a student, RC, requests an explanation for absences on 8 and 15 February 2012. In the attendance register that student was marked present on those days. Mr Wakeling's explanation was that he sent the email too early as it was based on a draft of the attendance register. We do not find that explanation convincing. 79As well as inconsistencies with the attendance records and emails, ANC's attendance records for the first 5 weeks of 2012 were inconsistent with other documents. For example, assessment papers show students completing assessments when they were marked absent. 80ANC says that it cannot provide a reason for absence if the student has not volunteered a reason. 81Mr Wakeling went on to say that when a student's projected rate of attendance fell below 85%, he sent him or her a warning letter. Examples were provided. If the poor rate of attendance persists, Mr Wakeling says he sends a second letter asking the student to meet with him. Two records of counselling sessions held with students in 2011 were provided. Finally, in relation to students whose attendance does not improve, a letter is sent notifying the student of an intention to report him or her to the relevant Commonwealth Department. Examples of such letters were provided. 82The lack of evidence from students as to their reasons for absence is reflected in the attendances register. The only two reasons for absences recorded in the register are that the student has a flexible timetable and is not required to attend at that time (F) or that the absence is unexplained (A). There is no instance of the absence being recorded as being due to sickness or medical reasons (S) or as having been approved for some other legitimate reason (L). All absences, other than for a flexible timetable were "unexplained". 83The rate of absenteeism is extraordinarily high. While we acknowledge that requiring international students to attend regularly may be challenging, the incidents of unexplained absences is chronic. Contrary to Mr Wakeling's evidence, we are not satisfied that he routinely sends emails to students each week requesting an explanation for any absence. Nor are we satisfied that the register of attendances accurately records students' attendance or the reason for non-attendance. Monitoring of attendance needs to be more accurate and strategies need to be implemented to change what appears to be a culture of absenteeism. The policy that students must account for all absences is not being implemented. As a result, ANC is not providing a safe and supportive environment for students.

Issue 4: Is the recommendation to cancel ANC's registration the correct and preferable decision? 84There are three ways in which we have found ANC to be non-compliant with providing a safe and supportive environment to students. The OPPM refers to wrong or non-existent legislation in relation to child protection, ANC did not comply with s 33D of the CCYP Act in relation to Mr Wakeling and ANC has effectively condoned an unacceptable level of unexplained absenteeism. 85ANC submitted that even if the Tribunal finds that it is non-compliant with its obligation to provide a safe and supportive environment to students, that non-compliance is not significant enough to justify a recommendation to cancel its registration. ANC submitted that the correct and preferable decision would be to set aside the Board's recommendation. Alternatively, ANC's registration should be reduced to a period ending on either 31 December 2013 or 31 December 2012. The Board's submission was that the recommendation should be confirmed. 86There is no guidance in the Act or in any other publication as to the circumstances in which cancellation of registration is justified. The Minister, the Board and the Tribunal all have a discretion not to recommend cancellation, or not to cancel a school's registration, even if the school has failed to comply with a requirement of registration. It follows that we may regard certain non-compliances as not justifying a recommendation to cancel ANC's registration. 87ANC asked the Tribunal to provide guidance as to the circumstances in which cancellation will be justified. The nature and frequency of any non-compliance and, most importantly, its effect on students are relevant matters. It is also relevant for the Tribunal to consider the likelihood that any non-compliance will continue. An indication as to that matter will be the school's history in rectifying non-compliances as they have been raised. 88Before being questioned about the inaccuracies in the OPPM, Ms Shead agreed, hypothetically, that such inaccuracies would not be acceptable. Mr Wakeling also agreed, in the abstract, that it is extremely important for a school's policies to refer to the correct legislation. When questioned directly about the inaccuracies in the OPPM, both Ms Shead and Mr Wakeling admitted that they were not aware that the OPPM contained errors. However, the opinions of ANC employees in relation to the seriousness of any non-compliances are not determinative of those issues. That is a matter for the Tribunal to determine. 89In relation to the inconsistencies and inaccuracies in legislation referred to in the OPPM, the effect of those errors is that staff were not given a totally accurate and comprehensive guideline in relation to the circumstances in which they should report a matter to the Ombudsman, to Community Services or the police. It is important for staff to be aware of the correct policies and procedures to be followed in relation to child protection and for those policies to be implemented. The OPPM did succeed in conveying the message that certain conduct and other matters needed to be reported. It was deficient in relation to questions of detail. 90We do not know whether there has been any adverse effect on a student as a result of these errors and omissions. 91This is one of the matters that was raised for the first time at the hearing. ANC was not on notice that this would be an issue and has not had an opportunity to amend its policy. In all the circumstances, we do not consider that this issue justifies a recommendation to cancel ANC's registration. 92In relation to ANC's failure to have Mr Wakeling complete a Prohibited Person Declaration, that was a breach of the CCYP Act. However, the evidence satisfies us that Mr Wakeling was subject to a Working with Children Check to ensure that he was not prohibited from working with children. We are satisfied that now that this matter has been drawn to their attention, ANC will comply with the relevant requirements of the CCYP Act. In all the circumstances, we do not consider that this issue, either alone or in combination with the first issue, justifies a recommendation to cancel ANC's registration. 93We have reached a different view in relation to the absenteeism issue. This is a systemic problem that cannot be allowed to continue indefinitely. To say that the issue is a challenging one or that the school cannot make a student give a reason for an absence is not an acceptable response. The culture needs to change before we can be satisfied that ANC is providing a safe and supportive environment. ANC has been on notice of this issue since at least 28 June 2011. At inspections prior to that date, inspectors noted a significantly high level of absenteeism, with reasons for absenteeism not being evident in attendance records. 94ANC's current registration expires on 31 December 2014. Under s 108(1)(a) and (b) the Tribunal may confirm the recommendation or make a different recommendation to the Minister concerning the subject matter of the application. 95The Board (and this Tribunal) has power to make a recommendation to the Minister that the period of renewal be reduced: s 57. The test in relation to that option is essentially the same as for a recommendation to cancel a school's registration, that is, that the Tribunal is not satisfied that the requirements for registration are being complied with: s 57(3). 96In our view a reduction in the period of registration is the preferable decision. The matters raised are significant enough to justify a reduced registration period, but not so significant as to justify immediate cancellation. The period of registration should be reduced so that it expires on 31 December 2012. 97The Board submitted that the Tribunal may make a recommendation to the Minister to reduce the period of registration but only if the procedures relating to the giving of notice to the school in s 57(3) have been met. We do not agree with that proposition. While the Tribunal "stands in the shoes" of the Board, the Tribunal is not the Board. Our role is to review the decision and vary it if the Board would have had power to make the varied decision. The administrative pre-conditions for the making of a decision that apply to the Board, do not apply to the Tribunal. 98We note that if ANC wishes to apply for renewal of its registration, it will be necessary for the Board to waive the requirement that ANC apply for renewal at least 9 months before it is due to expire: s 54A(2).

Order 1 Instead of the Board of Studies' recommendation to the Minister for Education that ANC High School Pty Ltd's registration as a non-government school be cancelled, the Tribunal makes the following recommendation: That the period of renewal of registration for ANC High School Pty Ltd be reduced so that it expires on 31 December 2012.

Legislative basis for cancellation of accreditation

99The Board may accredit registered non-government schools to present candidates for the Higher School Certificate: s 102(2)(c) and Part 8. Section 91 gives the Board power to cancel a school's accreditation "if the Board is satisfied that the requirements of this Act relating to the courses of study to be undertaken by candidates for the certificate concerned are not being complied with at the school." 100The relevant matters the Board or the Minister must have regard to when considering whether the requirements relating to the courses of study have been complied with are listed in s 92 and include: (a) the record (if any) of achievement by students at the school in the courses, and (b) the standard of teaching of the courses at the school, and (c) the facilities provided or to be provided at the school for the courses. 101Section 92(2) allows the Minister to take into account other matters, including the number of hours allocated at the school for the courses of study concerned, but the matters referred to in subsection (1) (a), (b) and (c) are the principal matters to which the Minister must have regard. 102These provisions embody what is referred to in the Act as the "quality of the educational program". 103Following review, the Tribunal may confirm the Board's decision to cancel accreditation or recommend to the Minister that the Minister not cancel the accreditation: s 108(a) and (d). Unless the Board considers it is not appropriate in any particular case, the period of accreditation of a non-government school is to correspond to the period of registration of the school: s 87(2). 104As is the case with decisions about registration, even if the school does not comply with the standards relating to the quality of the educational program, the Tribunal has a discretion not to recommend cancellation.

Issues in relation to cancellation of accreditation 105The issues in relation to the cancellation of accreditation decision can be summarised as follows: (1)Issue 5: Is ANC compliant with s 92(1)(a) and (b) of the Act and 5.3 of the Manual? In particular, have the requirements relating to the courses of study to be undertaken by candidates for the Higher School Certificate been complied with, principally having regard to: (a) the record (if any) of achievement by students at the school in the courses, and (b) the standard of teaching of the courses at the school, and (c) the facilities provided or to be provided at the school for the courses. (2)Issue 6: If ANC is not compliant, has the Board made the correct and preferable decision in cancelling ANC's accreditation?

Introduction 106Apart from homework policy, the Board did not criticise ANC's policies in relation to the quality of its educational program. The criticism concerned the implementation of those policies. In relation to the record of achievement by students, the Board pointed to the school's poor HSC results and samples of students' work. In relation to the standard of teaching, the Board pointed to inconsistencies in the assessment of students' work. These are the principal matters to which the Tribunal should have regard: s 92(2). Other matters raised by the Board were the number of contact hours for various courses of study and inconsistencies in homework policy.

Record of achievement 107The results of students sitting for the HSC is a strong indication of whether a school is providing a quality educational program to those students. ANC provided an enrolment register recording that of 197 students who had been enrolled since 2008, 39 were awarded the HSC. In 2010, one student was awarded the HSC and 14 students withdrew late. 108In 2011, 16 students achieved the HSC and 5 withdrew late. Of the 16 who sat for the HSC in 2011, one was not eligible to receive the HSC. While 15 were awarded the HSC, the standard, particularly in relation to Business Studies, Community and Family Studies and Maths was extremely low. In Business Studies 8/15 students were placed in Band 1. A mark in Band 1 indicates that the student has achieved below the minimum standard expected. The percentage of candidates in the state who receive a mark in Band 1 varies depending on the course and the year. As a generalisation, between about 1% and 5% of students obtain a mark in that band. Band 2 is the next highest band. In total, 13/15 (87%) of students studying Business Studies were placed in Band 1 or Band 2, comprising 13% of the state's candidates. Mr Wakeling agreed that these results were particularly poor. 109The rankings for Community and Family Studies were almost as low. Of the 16 students who sat for that course, 6 were placed in Band 1 and a further 7 were placed in Band 2, giving a total of 13/16 in the two lowest bands. The rankings for General Maths were also very poor with 6/16 in Band 1 and a further 5 in Band 2. Some students achieved Band 5 for Chinese for Background Speakers and General Maths. Two students achieved Band 6, the highest band, for Chinese for Background Speakers. 110The second matter relating to students' record of achievement was a sample of student assessments. ANC provided copies of the assessments which the Board had previously identified as missing following its inspections. Mr Wakeling gave evidence that when he took over as principal in Term 3 of 2011, several Year 11 students were consistently failing their assessments for 2 unit Business Studies. He organised additional classes so that the students could progress to Year 12. Extra assessments were undertaken. 111Three students who completed the assessment, which was an hour long paper, gave identical answers to the majority of questions. There is no doubt that they had copied from one another.

Standard of teaching 112The teacher who marked the 2 unit Business Studies assessment gave three students different marks even though their answers were identical. For one answer, the teacher gave three different marks: 1 ½, 2 ½ and 3 out of 4. Other identical answers were also marked inconsistently. Some identical answers were marked consistently.

Other matters 113Each 2 unit course for the HSC requires 120 contact hours. To meet that requirement, ANC has a policy of providing 20 hours of contact per week. Mr Wakeling was shown samples of students' timetables which demonstrated that the students concerned could not meet 20 hours per week of course time. Of the 17 students in Year 12, only two were recording the minimum of 20 hours. The rest were not timetabled to be at school for 20 hours. 114Mr Wakeling's response was that students were regularly issued with new timetables so that they could make up hours because of absences or additional course requirements. 115ANC submitted that the few examples shown to Mr Wakeling in cross-examination do not demonstrate that ANC is not providing sufficient contact hours to any student over the course of the whole term. 116ANC was not on notice that this was an issue of concern until the hearing but Mr Wakeling had an opportunity to explain any shortfall in the hours on the timetable. The cross-examination established that ANC has breached its own policy on contact hours. Mr Wakeling's explanation for that situation was not persuasive. It is not credible that students would be regularly issued with new timetables and that hours lost one week would be made up in another week. We are satisfied that the Board's contact requirements, which calculates hours over the entire term, are not being met for every student. 117The final matter in relation to the quality of the educational program was an inconsistency in the policy relating to homework. At one point the OPPM states that homework is to be encouraged and failure to complete homework can result in adverse consequences for students. The School's Staff Manual indicates that a student's assessment should not be dependent on homework. Mr Wakeling and Ms Shead both agreed that ANC should have clear and unambiguous policies and ANC would be failing in its responsibilities if it did not have such policies.

Issue 6: Is the decision to cancel ANC's accreditation the correct and preferable decision?

118The same consideration applies to decisions about accreditation as to registration. Those considerations include the nature and frequency of any non-compliance, its effect on students and the likelihood that any non-compliance will continue. 119The record of achievement by students at ANC, particular in relation to the HSC results in three out of five subjects in 2011, is extremely poor. While there was a significant improvement from 2010 to 2011, the record of achievement remains below expectations. 120There was little direct evidence about the standard of teaching but one example provided, which showed that the teacher marked identical answers differently without realising that the students had copied from one another, is also a concern. 121The Board made the point that the requirements in the Act and the Manual are minimum requirements and that ANC has provided documents which should be taken to reflect its 'best practice'. ANC refutes that assertion saying that it did not claim that the documents it put before the Tribunal were its "best case". We accept that submission in relation to the assessments for 2 unit Business Studies. 122The poor quality of ANC's educational program, as reflected in the HSC results, affects students fundamentally. While ANC was not on notice of the specific problems with the assessments prior to the hearing, they are accountable for their students' record of achievement. However, given the radical improvement from 2010 to 2011 and the possible scope for improvement in the 2012 HSC results, we have decided not to cancel the school's accreditation. Section 108 does not give the Tribunal express power to reduce the period of accreditation. In general the period of accreditation of a non-government school is to correspond to the period of registration of the school: s 87(2). 123Having decided to recommend that the period of renewal of registration for ANC be reduced so that it expires on 31 December 2012, the preferable decision in relation to accreditation is that ANC's accreditation not be cancelled but that, subject to order 1 being made in relation to registration, ANC's accreditation should correspond to the period of registration.

Order 2 Subject to order 1, the Tribunal recommends that, instead of the Board of Studies' recommendation to the Minister of Education that ANC High School Pty Ltd's accreditation be cancelled: The period of renewal of accreditation for ANC High School Pty Ltd be reduced so that it expires on 31 December 2012.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 June 2012