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[2013] NSWADTAP 8
mixed. Appeal allowed in part; Tribunal orders set aside and replaced with orders that the Tribunal does not confirm the Board's recommendation and makes different recommendations to the Minister that the...
The Board of Studies wanted to cancel the registration and accreditation of a small Sydney CBD school that taught only overseas senior students because inspectors found poor attendance recording, inadequate child-protection policies and weak oversight of absenteeism. The Tribunal agreed there were problems but decided the fairer outcome was to let the school finish the year rather than cancel its registration. On appeal the Board argued that attendance registers were a core registration requirement and that the Tribunal had used the wrong legal test and the wrong form of orders. The Appeal Panel said the Tribunal's wording of orders needed fixing to match the exact language of the Education Act, but the Board was wrong on the big legal points: s 47 contains a closed list of what counts for registration, attendance registers are not on that list, and Commonwealth overseas-student rules cannot be smuggled in either. The school could therefore keep operating until the end of 2012 and its managers would not face the five-year ban that follows cancellation.
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ANC High School Pty Ltd had operated since January 2008 as a Year 11/12 provider in central Sydney catering exclusively to overseas students. In late 2010 Board inspectors began an investigation after an application to move premises and after analysis of the school's 2010 Higher School Certificate results showed an unusually high proportion of students achieving below the minimum standard and a high rate of late withdrawals. The investigation expanded to examine compliance with both State registration and accreditation standards and the school's performance as a Commonwealth-approved provider under the Education Services for Overseas Students Act 2000 (Cth).
By May 2011 the Board's Registration and Accreditation Committee had received four reports. The inspectors concluded that the school failed to maintain a proper register of enrolments and attendances (contrary to s 24 and Manual s 3.8), did not provide a safe and supportive environment (s 47(g) and Manual s 3.6.1), and delivered an educational program of insufficient quality (ss 12, 92 and Manual s 5.3). Separate findings were made about non-compliance with Commonwealth provider requirements concerning enrolment formalisation, monitoring of progress and attendance, deferral of enrolments, and welfare of students under 18. The Board adopted these findings at its 28 June 2011 meeting and decided to recommend cancellation of registration under s 59, to cancel accreditation under s 91, and (by delegated power) to cancel the provider approval.
The school applied to the Administrative Decisions Tribunal. From 1 July 2011 the Tribunal no longer had jurisdiction over provider-approval decisions, so the review proceeded only in respect of the registration recommendation and the accreditation cancellation. After a full hearing the Tribunal delivered its decision on 29 June 2012. It found three discrete breaches of the safe-and-supportive-environment requirement: incorrect references to child-protection legislation in the school's manual, failure to comply with s 33D of the Commission for Children and Young People Act 1998 in appointing a particular teacher, and an unacceptably high level of unexplained absenteeism. However it held that the obligation to keep an attendance register under s 24 was not a "requirement of registration" under s 47, that the Manual's treatment of the register was inconsistent with the Act, and that Commonwealth ESOS matters fell outside the registration criteria. Instead of cancellation the Tribunal recommended that the periods of both registration and accreditation be reduced so as to expire on 31 December 2012.
The Board appealed to the Appeal Panel on six questions of law and sought leave to extend the appeal to the merits. By the time of the appeal hearing on 26 September 2012 the school had only three students left and intended to close on the date fixed by the Tribunal. The Appeal Panel heard oral argument, received further written submissions, and delivered judgment on 14 February 2013. It upheld the Tribunal's core statutory-interpretation conclusions but found that the form of the Tribunal's orders did not match the language required by s 108. The Appeal Panel therefore allowed the appeal to that limited extent, set aside the Tribunal's orders, and substituted orders cast in the statutory form: the Tribunal does not confirm the Board's recommendation and makes a different recommendation to the Minister that the registration and accreditation periods be reduced to expire on 31 December 2012. Leave to extend to the merits was refused and the school's costs application was dismissed.
The Appeal Panel's reasoning begins with a close textual and historical analysis of the Tribunal's review jurisdiction. Sections 107 and 108 of the Education Act 1990 were held to create a specific statutory scheme that replaced the former School Appeals Tribunal and deliberately excluded the general review powers in ss 63 and 65 of the Administrative Decisions Tribunal Act 1997 (see [18]-[19]). The Tribunal below had acknowledged s 108 but had nevertheless cast its orders in the language of s 63(3). The Panel regarded this as an error, albeit one that could have been cured by the slip rule, and accordingly reformulated the orders into the precise statutory language of "does not confirm" and "makes a different recommendation" ([20]-[21]).
On the more substantial question whether the Tribunal could recommend reduction of the registration period when a reduction decision is not itself reviewable under s 107, the Panel gave a wide construction to the phrase "different recommendation concerning the subject-matter of the application" in s 108(1)(b) ([25]). The subject-matter was identified as the underlying compliance, performance and quality concerns rather than the particular sanction chosen by the Board. This interpretation was said to be necessary for the review scheme to work satisfactorily and to allow the Tribunal to draw the Minister's attention to a fairer or more proportionate response ([26]). The Panel accepted that if the alternative involved special procedural steps (such as those in s 57A) the Minister might need to seek further advice from the Board, but that did not prevent the Tribunal from making the recommendation.
The central and most far-reaching aspect of the decision concerns the exhaustive character of s 47. The Panel emphasised the opening words "For the purposes of this Act, the requirements for the registration of a non-government school are as follows" and the legislative history showing progressive expansion of the list ([61]-[67]). Because s 24 sits in Part 5 ("Attendance of Children at School") and creates a criminal offence enforceable against the principal rather than the proprietor, it could not be read into s 47 unless expressly picked up. The contrast with s 47(j), which does expressly incorporate Part 3 curriculum standards, was decisive ([32]-[33]). The Panel rejected the Board's argument based on necessary implication, citing the danger that regulated parties would be unable to ascertain their obligations from the statute itself ([74]). Likewise, the detailed prescriptions in Manual s 3.8 could not convert s 24 compliance into a registration requirement; to that extent the Manual was inconsistent with the Act and could not be treated as binding Government policy under s 64 of the Administrative Decisions Tribunal Act 1997 ([50], [78]).
A parallel analysis applied to the Commonwealth ESOS matters. The Panel noted the bifurcated regulatory regime and the absence of any express linkage in the Education Act between State registration requirements and Commonwealth provider obligations ([83]). The ordinary meaning of "safe and supportive environment" in s 47(g), informed by the 2004 second reading speech, was held to concern pastoral care, child-protection policies and on-site supervision rather than off-site accommodation arrangements for overseas students ([82]). Section 47(i) was confined to traditional boarding-school facilities and did not extend to the school's arrangements with a private provider for scattered off-site housing ([86]). Because the Board's original show-cause letter had separated the provider-approval issues from the registration decision, it was not open to the Board to re-characterise them on appeal.
Finally, the Panel corrected the Tribunal's statement that the test for reduction of registration is "essentially the same" as for cancellation. The former turns on lack of satisfaction that requirements are being met (s 57(3), s 57A(2)), while the latter requires positive satisfaction that they are not being met (s 59). The distinction, though subtle, reflects the relative severity of the sanctions and could not be elided ([41]-[43]). Nevertheless the Panel held that even a finding of breach did not compel the Tribunal to recommend cancellation; its power to make a different recommendation remained available to achieve a proportionate outcome ([47]).
Prior to the 2004 amendments the registration requirements in s 47 were narrower and did not contain the safe-and-supportive-environment paragraph. The Education Amendment (Non-Government Schools Registration) Act 2004 substantially expanded the list, inserting the current paragraphs (b) to (l) and adding the note referring to guidelines under what became s 131. The second reading speech made clear that the new s 47(g) was directed to formal policies on welfare, child protection and mandatory reporting, with no mention of attendance registers ([65]-[66]).
The Appeal Panel noted that the Tribunal's review jurisdiction had replaced that of the School Appeals Tribunal in 1998 and that s 108 was deliberately framed to give the ADT the same limited advisory role vis-à-vis the Minister ([19]). The 1999 decision in Ford and Net Grammar School Pty Ltd v Board of Studies had proceeded on the same understanding.
After the present decision the legal position is that s 47 remains an exhaustive catalogue. Compliance with s 24, while still a statutory obligation carrying a criminal sanction, is not a ground for cancellation or non-renewal of registration unless it can be brought within one of the listed paragraphs (most obviously s 47(g) via policies on absenteeism, but not via the detailed "common codes" or form prescribed under s 24). The Board's Manual must now be read down so that its statements about attendance registers do not purport to create additional registration requirements. Commonwealth ESOS compliance remains a separate regulatory track; any perceived deficiencies must be addressed through the Commonwealth Minister or delegate rather than through State registration sanctions. The Tribunal's power to recommend reduction of registration period as an alternative to cancellation is confirmed, subject to the procedural requirements of s 57A.
The Panel expressly called for legislative amendment of s 47 to overcome the uncertainty exposed by the case ([79]). That call has not been answered in the materials before the Panel, leaving the exhaustive-list principle intact but highlighting ongoing regulatory awkwardness.
Paragraph [25]: "The phrase 'different recommendation' is a wide one. The scope of the 'different recommendation' is confined simply by the words 'concerning the subject-matter of the application'."
Plain English: The Tribunal can suggest any sensible alternative that deals with the same underlying problems the Board was worried about; it is not stuck with the exact menu of decisions listed in s 107.
Paragraph [32]-[33]: The Tribunal's reasons (adopted by the Panel) explaining that s 24 is in a different Part, is a penal provision, and is not cross-referenced in s 47, whereas s 47(j) does expressly pick up Part 3.
Plain English: When Parliament wanted to bring something from another Part of the Act into the registration requirements it said so clearly. It did not say so for attendance registers, so they are not registration requirements.
Paragraph [75]: "In our view, the contents of 3.8 of the Manual are not capable of being made an additional requirement by necessary implication. As to whether the contents of 3.8 of the Manual should be seen as simply an aspect of those matters that can properly be seen as affording a 'safe and supportive' environment to students, our view is that they can not."
Plain English: The Board cannot use guidelines to invent new registration obligations. Attendance registers are important for administration but they are not the same thing as the pastoral-care and child-protection policies that s 47(g) is really about.
Paragraph [77]: "s 47 read alone, and read in the context of the Act as a whole, is intended to be an exhaustive statement of the requirements of registration. There should be regulatory certainty in a matter of this kind, and, in our view, s 47 seeks to achieve that, despite the vagueness of the language used in some parts of the provision."
Plain English: Schools should be able to read the Act and know exactly what they must do to stay registered. Adding extra obligations by implication or by a manual destroys that certainty.
Paragraph [86]: The Panel's rejection of the boarding-facilities argument under s 47(i), noting that the school occupied a floor in a CBD building and arranged scattered off-site accommodation through a private provider.
Plain English: A conventional boarding school with on-site dormitories is one thing; overseas students living in private flats chosen by a third-party provider is quite another. Section 47(i) does not apply.
The decision is triggered whenever the Board seeks to treat compliance with s 24 attendance registers, or with detailed Manual prescriptions not expressly anchored in s 47, as a ground for refusing, not renewing or cancelling registration. It applies to any non-government school (including senior colleges for overseas students) where inspectors rely on the "common codes", form of register, or frequency of data returns as though they were themselves registration requirements. The case also governs attempts to import Commonwealth ESOS Act obligations (monitoring of accommodation, welfare of students under 18, formalisation of enrolment, deferral policies) into a State registration decision.
Fact patterns that engage the wide construction of "different recommendation" include any case in which the Tribunal considers that a lesser sanction (reduction of registration period, conditions, or further monitoring) would be more proportionate than outright cancellation, even if the lesser sanction is not itself a reviewable decision. The distinction between the "not satisfied" test for reduction and the "satisfied not compliant" test for cancellation will be relevant whenever the Board or Tribunal is considering graduated responses. The principle that s 47 is exhaustive will also arise whenever the Board or a Tribunal seeks to rely on matters located in Parts other than Part 7 (curriculum, reporting, attendance, etc.) without an express statutory bridge.
The Appeal Panel itself treated the 1999 decision in Ford and Net Grammar School Pty Ltd v Board of Studies as persuasive authority for the limited advisory role of the Tribunal under the predecessor legislation, noting that the panel in that case had included two former members of the School Appeals Tribunal ([19]). That earlier decision was followed on the point that the Tribunal's function is to provide the Minister with an alternative recommendation rather than to exercise a general merits-review jurisdiction.
The High Court decision in Plaintiff M47/2012 v Director General of Security was cited for the proposition that a power to make rules or regulations "not inconsistent with" the Act does not authorise the creation of obligations that contradict the exhaustive character of a statutory list ([77]). The Panel applied that reasoning directly to the Board's rule-making power under s 131.
Because the present judgment is a principal judgment of the Appeal Panel on the interpretation of ss 47, 108 and 131, its holdings on the exhaustive nature of s 47, the limits of the Manual, and the width of the "different recommendation" power stand as authoritative within the Tribunal's hierarchy. No subsequent treatment appears in the materials, but the Panel's call for legislative amendment of s 47 indicates that the decision was expected to have ongoing systemic significance until Parliament acts.
The Panel left open whether, once a breach of a registration requirement is found, the Board itself is obliged to recommend cancellation or whether it retains discretion to propose lesser measures ([46]). That question was not necessary to decide because the Tribunal's powers were held to be broader.
The precise boundaries of "safe and supportive environment" under s 47(g) remain somewhat flexible. The Panel accepted that policies and their implementation relating to absenteeism could fall within that paragraph even though the register obligation itself does not ([73]), but it drew a firm line against importing the detailed administrative prescriptions of s 24 and the Manual. Future cases will need to determine how far "pastoral care" and "personal and social needs" extend.
The procedural consequences of a Tribunal recommendation for reduction under s 57A were acknowledged but not fully explored. The Panel accepted that the Minister might need to refer the matter back to the Board for further consideration because of the special procedural requirements in s 57A, but it did not prescribe the exact steps or decide whether such a subsequent Board decision would itself be reviewable ([27]).
Most obviously, the Panel left unanswered its own call for legislative reform: "In our view, s 47 should be amended to overcome the problem identified by this case" ([79]). Until that occurs, the tension between the exhaustive list in Part 7 and the important administrative obligations in Part 5 will continue to generate disputes about the precise content of registration requirements. The decision therefore leaves open the practical question whether Parliament will insert an express reference to s 24 (and perhaps to ESOS compliance) into s 47 or whether the Board must continue to work within the narrowed grounds confirmed by the Appeal Panel.
REASON FOR DECISION 1This appeal is brought by the decision-maker, the Board of Studies, against a determination of the Tribunal below purporting to vary two decisions of the Board affecting ANC High School Pty Ltd (the respondent to the appeal). 2The respondent had since January 2008 operated a Year 11/12 high school for overseas students in a building in the central business district of Sydney. On 28 June 2011 after an investigation by its inspectors and a show cause process, the Board decided to recommend to the Minister under s 59 of the Education Act 1990 (the Education Act) that the Minister cancel the respondent's registration; and consequentially to cancel pursuant to s 91 the respondent's course accreditations. 3The Board's decision had a third element. Schools seeking to enrol students are required by Commonwealth law to hold a 'provider approval' under Commonwealth law. The Board had at the time authority to cancel provider approvals held by registered non-government schools (by delegation from the NSW Vocational Education and Training Accreditation Board, under s 35 of the Vocational and Educational Training Act 2005). The Board cancelled the respondent's provider approval. 4The respondent applied to the Tribunal for review. As from 1 July 2011 the Tribunal no longer had a review jurisdiction in respect of provider approval decisions. As a result, the respondent's review application proceeded in the Tribunal only in relation to the first two decisions of the Board. The Tribunal could not review the third decision. 5We mention these matters at the outset as they explain much of the complication that has surrounded the proceedings before the Tribunal below and the submissions made by the Board on appeal. In essence, the Board has sought to treat as relevant to the decisions made in relation to registration and accreditation some matters that it had relied on in support of its provider approval decision but not included in its reasons in support of its registration and accreditation decisions. 6The Board had clearly divided its findings by reference to the three powers open to be exercised, as reflected in the report to the Board for its 28 June 2011 meeting. The report stated: '2.2 The investigation of concerns about the School and School Provider commenced on November 2010 when concerns were identified whilst Board Inspectors were assessing an application to move premises. The investigation was broadened in January 2011 when an analysis of the 2010 Higher School Certificate results identified a high proportion of students from the School with results below the minimum standard expected and a high proportion of students who were late withdrawals from the HSC. The Committee [the Board's Registration and Accreditation Committee] considered reports on the School and the School Provider on 15 December 2010 and 16 February, 23 March and 11 May 2011. 2.3 The report considered on 11 May 2011 identified that the investigating Board Inspector found that the school was not complying with the requirements for registration and accreditation as specified in the Education Act 1990 (the Act) and detailed in the Board of Studies' Registered and Accredited Individual Non-Government Schools (NSW) Manual (the Manual). Specifically, the inspector found that the School was not complying with the registration requirements for providing a safe and supportive environment (section 47(g) of the Act, section 3.6.1 of the Manual) and having a register of enrolments and daily attendance (section 24 of the Act, section 3.8 of the Manual). 2.4 With regard to the accreditation requirements, the inspector found that the School was not complying with the accreditation requirements for courses leading to the award of the HSC and, in particular, the quality of the educational program (ss 12 and 92 of the Act, section 5.3 of the Manual). 2.5 The report considered by the Committee on 11 May 2011 also identified that the inspector found that the School Provider was not complying with the requirements for approval specified by the Education Services for Overseas Students Act 2000 (the ESOS Act) and the associated National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students (the National Code). The requirements for the ESOS Act and associated legislative framework are detailed in the Board's Guidelines for Approved NSW School Providers Delivering Courses to Overseas Students (the Guidelines). 2.6 Specifically, the inspector found that the School Provider was not complying with the approval requirements with regard to deferring, suspending or cancelling student enrolments (section 19 of the ESOS Act, section 3.19 of the Guidelines), formalisation of enrolment (section 3.9 of the Guidelines), younger students (section 3.11 of the Guidelines), monitoring course progress (section 3.6 of the Guidelines) and monitoring attendance (section 3.17 of the Guidelines).' 7The Board adopted these reasons and the related explanations given by its inspectors in its final decision and in the letter of notification of decision served on the respondent on 1 July 2011. 8The Tribunal decision, made 29 June 2012, was as follows: 1. Instead of the Board of Studies' recommendation to the Minister of 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. 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: That the period of renewal be reduced so that it expires on 31 December 2012. 9The Board does not regard the decision as satisfactory in the circumstances. While the objective of having the respondent's school close was realised, it considers that the preferable course remains cancellation. In that regard it refers to the different future consequences that apply to those involved in a school's administration where its registration and accreditation have been cancelled. Section 47(c) of the Education Act provides relevantly: For the purposes of this Act, the requirements for the registration of a non-government school are as follows: (c) any ... cancellation of registration, of the school or any other school under section 56 or 59 occurring during the period of 5 years immediately before the application for registration is made has not been largely attributable to the actions of a responsible person or proposed responsible person for the school, or any other person or body having similar functions in relation to the management or operation of the school to those of a responsible person. 10This is a convoluted provision, but it is accepted by the parties that what this means is that senior persons of the kind mentioned who are involved with a school whose registration has been cancelled can not be applicants for registration for five years unless they can demonstrate that their conduct has 'not been largely attributable' to that outcome. The Tribunal's decision if implemented would have the effect of immunising those people from that consequence. 11The Board may appeal on a 'question of law' and apply for leave to extend the appeal to the merits: Administrative Decisions Tribunal Act 1997 (ADT Act), ss 112-113. 12The Board's appeal identified six questions of law and included an application for leave to extend to the merits. The respondent has not appealed. We were informed at the appeal hearing on 26 September 2012 that ANC only had three students still enrolled, and the school would close on the date specified by the Tribunal's order, 31 December 2012.
Nature of Tribunal's Jurisdiction and Order-making Powers in School Review Cases 13We will deal immediately with two points raised by the Board in the course of its submissions, not separately identified as questions of law in the grounds of appeal, but they underlie a number of the submissions on the identified questions of law. 14The Tribunal's review jurisdiction is conferred by s 107 of the Education Act, and s 108 deals with its order-making powers. They provide: 107 Applications for reviews of certain decisions (1) An application may be made to the Tribunal for a review of any of the following decisions: (a) a recommendation of the Board that registration of a non-government school be refused, (b) a recommendation of the Board that registration of a non-government school not be renewed, (c) a recommendation of the Board that registration of a non-government school be cancelled, (d) a recommendation of an authorised person that the Minister refuse to register a child for home schooling, (e) a recommendation of an authorised person that the registration of a child for home schooling be cancelled, (e1) a direction of the Director-General under Division 3 of Part 5A concerning the government schools in which a particular student may be enrolled, (f) a decision of the Board not to accredit a school, (g) a decision of the Board not to renew the accreditation of a school, (h) a decision of the Board to cancel a school's accreditation. (2) A person is entitled to make any such application only if the person is or is required to be given notice of the recommendation, direction or decision under this Act. 108 Determination of application by the Tribunal (1) On application for the review of a recommendation or decision, the Tribunal may: (a) confirm the recommendation, direction or decision, or (a1) in the case of an application for the review of a direction of the Director-General concerning the government schools in which a particular student may be enrolled-recommend to the Minister that the direction be varied or revoked, or (b) in the case of an application for the review of a recommendation of the Board or an authorised person-make a different recommendation to the Minister concerning the subject-matter of the application, or (c) in the case of an application for the review of a decision of the Board not to accredit a school-recommend to the Minister that the Minister accredit the school as requested or grant such other accreditation as the Tribunal considers appropriate, or (d) in the case of an application for the review of a decision of the Board to cancel a school's accreditation-recommend to the Minister that the Minister not cancel the accreditation or cancel it only in so far as it relates to one of the recognised certificates. (2) This section applies to the exclusion of the provisions of sections 63 (Determination of review by Tribunal) and 65 (Power to remit matters to administrator for further consideration) of the Administrative Decisions Tribunal Act 1997. 15Section 108(2) refers to s 63 of the ADT Act. Section 63 provides: 63 Determination of review by Tribunal (1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision. (3) In determining an application for the review of a reviewable decision, the Tribunal may decide: (a) to affirm the reviewable decision, or (b) to vary the reviewable decision, or (c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or (d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. 16The Board submitted that the Tribunal's orders did not conform to s 108 of the Act. The Board noted that, as relevant to this case, the Tribunal order could 'confirm the recommendation' (s 108(1)) or 'make a different recommendation concerning the subject matter of the application' (s 108(1)(b)). Further it submitted that the different recommendation could not embrace the subject of reduction of registration when that was not a decision of a kind that the Tribunal was empowered to review under s 107. 17The Board had made similar submissions to the Tribunal. The Tribunal considered that s 108 did not hamper its ability to exercise the general powers given by s 63 of the ADT Act: see reasons at [14]. 18It is plain, we consider, that the Education Act establishes a scheme under which a school may apply to the Tribunal for review, but the Tribunal's decision-making role is to provide the Minister with an alternative recommendation if it differs from the recommendation made by the Board. In a case like the present where the Tribunal disagreed with the Board's assessment, the Tribunal should have proceeded to cast its decision as one not confirming the Board's recommendation and making a 'different recommendation'. 19This conclusion is supported by the legislative history. The Tribunal's review jurisdiction in this area replaced that of the School Appeals Tribunal. The current provisions took effect on the commencement of the Tribunal (6 October 1998). They directly reproduce the provisions that applied to the former tribunal. The terms of s 108(2) were, as we see it, deliberately intended to ensure that the ADT had the same role as that of the former tribunal, i.e. a separate point of advice to the Minister on issues of the present kind. Our view accords with that assumed by the Tribunal in 1999 in a decision dealing with the application for review of a recommendation by the Board to refuse registration to applicants seeking to establishing an 'internet' high school: see Ford and Net Grammar School Pty Ltd v Board of Studies [1999] NSWADT 47 at para [10] (the panel included two former members of the School Appeals Tribunal). 20We note that the Tribunal did acknowledge at [14] of its reasons that s 108 sets out orders which the Tribunal may make and to that extent 'replaces' s 63(3), yet it is apparent that it ultimately proceeded to cast its orders in the form seen in s 63(3). It may be that the Tribunal simply made a mistake in that regard that could have been corrected under the slip rule. This aspect of the matter could simply be addressed by re-formulating the Tribunal's order to read as follows: The Tribunal does not confirm the Board's recommendation. The Tribunal makes a different recommendation to the Minister, namely that the Minister ask the Board to consider making a recommendation to the Minister that there be a reduction in the period of the current registration to three years, with the effect that it expire on 31 December 2012. 21A parallel order could be made in relation to accreditation. 22The Board's next point is more fundamental. It is that the Tribunal could not, in circumstances where it had no jurisdiction to review a decision to reduce the period of registration, canvass that possibility as a solution in any different recommendation to the Minister. 23The decision types listed in s 107 are only some of those open to the Board to make. There is no conferral of a general jurisdiction on the Tribunal to review all of the powers of decision and recommendation given to the Board. We accept that there is no review jurisdiction given to the Tribunal in relation to decisions by the Board relating to the reduction of a period of registration under s 57A. 24However, we do not accept that the conferrals of jurisdiction found in s 107 limit the scope of the different recommendations that the Tribunal may make under s 108. 25The phrase 'different recommendation' is a wide one. The scope of the 'different recommendation' is confined simply by the words 'concerning the subject-matter of the application'. In our view, the words 'the subject-matter of the application' refer to the compliance, performance and quality concerns that lead the Board to take action, not merely the type of final decision made. 26For a review scheme of this kind to work satisfactorily, it must, as we see it, be open to the Tribunal to look to the menu of responses the Board might make to an unsatisfactory situation. The Tribunal should be free to draw the Minister's attention to an alternative course of action if it is of the view that the alternative is fairer and more proportionate to the circumstances than that favoured by the Board. In our view, an 'alternative recommendation' can embrace consideration of a response or resolution that goes beyond the catalogue of decision-types made externally reviewable by s 107. 27We accept that if the alternative course proposed by the Tribunal is one that has special procedural requirements (as applies to the consideration of the possibility of reduction of registration, see s 57A of the Education Act), it may then be necessary for the Minister to seek the Board's views before acting (as we understood the Board to submit). Similarly we accept that if that course is pursued, and the Board makes a decision of that kind, it would not itself be reviewable by the Tribunal.
Relevant Provisions 28In light of the arguments as they have developed, there are several legislative provisions that it is desirable to set out before turning to the specific questions of law. The first is s 47. While the Board's reasons only referred to s 47(g), in the later conduct of the case the Board has referred to a number of other paragraphs of s 47. It is helpful, we think, to set out the whole provision: 47 Registration requirements for non-government schools For the purposes of this Act, the requirements for the registration of a non-government school are as follows: (a) if the school is seeking to become registered as an individual school-the school's proposed proprietor must be a corporation or other form of legal entity approved by the Minister, (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 of good character, (c) any refusal to register, or cancellation of registration, of the school or any other school under section 56 or 59 occurring during the period of 5 years immediately before the application for registration is made has not been largely attributable to the actions of a responsible person or proposed responsible person for the school, or any other person or body having similar functions in relation to the management or operation of the school to those of a responsible person, (d) teaching staff for the school have the necessary experience and qualifications (having regard to accreditation under the Institute of Teachers Act 2004 but without limiting such other matters as may be relevant), (e) educational facilities are adequate for the courses of study provided at the school, (f) school premises and buildings are satisfactory, (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 Division 2 of Part 7 of the Commission for Children and Young People Act 1998, and (iii) school policies and procedures that ensure compliance with relevant notification requirements imposed in relation to persons employed at the school by Part 3A of the Ombudsman Act 1974 and Part 7 of the Commission for Children and Young People Act 1998, (h) school policies relating to discipline of students attending the school are based on principles of procedural fairness, and do not permit corporal punishment of students, (i) if the school provides boarding facilities, whether itself or by contractual arrangement-school policies and procedures that are satisfactory to ensure the safety and welfare of boarders, (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 (iii) in the case of a school providing secondary education for children during Year 11 and Year 12-the curriculum for students who are candidates for the Higher School Certificate, (k) school policies and procedures are appropriate to ensure the personal and social development of students who are undertaking all or a significant part of their courses of study by means of distance education, (l) school policies and procedures ensure its participation in annual reporting (of a kind determined by the Minister following consultation with persons recognised by the Minister as having appropriate expertise in accountability matters): (i) to publicly disclose the educational and financial performance measures and policies of the school, and (ii) to provide data to the Minister that is relevant to the Minister's annual report to Parliament on the effectiveness of schooling in the State. Note. Section 131 enables the Board to make rules setting out guidelines to assist a non-government school to comply with the requirements for registration set out in section 47. 29The accreditation decision referred to s 92. It provides: 92 Quality of educational program to be assessed (1) In deciding whether the requirements of this Act relating to the courses of study for the recognised certificate concerned will be complied with (or are being complied with) at a non-government school, the Board or the Minister is to have regard to such matters as: (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) While the Board or the Minister may have regard to such other matters as the Board or the Minister thinks fit (including the number of hours allocated at the school for the courses of study concerned), the matters referred to in subsection (1) (a), (b) and (c) are the principal matters to which each is to have regard in deciding whether the requirements will be (or are being) complied with at the school. 30As noted earlier, the Board's inspectors relied in relation to the registration and accreditation decisions on the guidance given by the Board's Manual. The Manual is an instrument made pursuant to s 131 of the Education Act. Section 131 provides: 131 Rules of Board (1) The Board may make rules, not inconsistent with this Act or the regulations, for or with respect to the exercise of any of its functions. (1A) Without limiting subsection (1), the rules may set out guidelines with respect to the requirements for registration and accreditation set out in Parts 7 and 8. (2) A rule does not take effect unless approved by the Minister. (3) A rule is to be published as prescribed by the regulations and takes effect on the date of publication or a later date specified in the rule. 31The provision of immediate relevance is s 131(1A). 32The Board's case referred in turn to s 64 of the ADT Act. Section 64 provides: 64 Application of Government policy (1) In determining an application for a review of a reviewable decision, the Tribunal must give effect to any relevant Government policy in force at the time the reviewable decision was made except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case. (2) The Premier or any other Minister may certify, in writing, that a particular policy was Government policy in relation to a particular matter. (3) The certificate is evidence of the Government policy concerned and the Tribunal is to take judicial notice of the contents of that certificate. (4) In determining an application for a review of a reviewable decision, the Tribunal may have regard to any other policy applied by the administrator in relation to the matter concerned except to the extent that the policy is contrary to Government policy or to law or the policy produces an unjust decision in the circumstances of the case. (5) In this section: Government policy means a policy adopted by: (a) the Cabinet, or (b) the Premier or any other Minister, that is to be applied in the exercise of discretionary powers by administrators. 33The Board's decision referred to s 24 of the Act. Section 24 provides: 24 Register of enrolments and attendances (1) The principal of a government school or registered non-government school must keep a register, in a form approved by the Minister, of the enrolments and daily attendances of all children at the school. (1A) The register is to contain any notification given (or particulars of any notification given) about the absence of a child from school under section 23 (3) (a). (2) The register must be available for inspection during school hours by a Board inspector or by any authorised person, who may require the principal of the school to furnish a copy of the register or any part of it. (3) When required to do so by the Minister, the principal of a government school or registered non-government school must furnish to the Minister information, within a time and in a form approved by the Minister, concerning the following: (a) the enrolment and attendance of children at the school during a specified period, (b) any unsatisfactory school attendance by children of compulsory school-age enrolled at the school. (4) The particulars of enrolments and daily attendances recorded in a register under this section must be retained for such period as the Minister may determine. (5) A principal of a government school or registered non-government school who, without reasonable excuse, fails to comply with a requirement imposed by or under this section is guilty of an offence. Maximum penalty: 5 penalty units.
The Way the Tribunal Dealt with the Board's Reasons 34On the key issue, that of cancellation of registration, the Tribunal held that the alleged non-compliances with s 24 did not fall within the scope of the requirements of registration under s 47(g), contrary to the Board's Manual and the Board's submissions. It also excluded from consideration those matters examined by the Board in connection with its decision to cancel the provider approval. The Tribunal confined its attention to the matters it regarded as properly falling within the purview of s 47(g) (maintenance of a 'safe and supportive environment'). 35The Appeal Panel Hearing. The Appeal Panel's oral hearing occurred on 26 September 2012. Unfortunately, the directions for the appeal had not included the usual directions for the exchange of submissions subsequent to the filing of the notice of appeal and the reply. On the day before the hearing the Board chose to file written submissions, which we accept was understandable given the nature of the case. The respondent, the school, was placed at a disadvantage. The Appeal Panel proceeded to hear oral submissions from both sides, and set a timetable for written submissions, in reply from the school and submissions in reply to those submissions from the Board. That process was completed on 10 October 2012. 36As previously noted, the respondent advised that it would be closing the school by 31 December 2012. We raised with the parties the utility of continuing with the appeal in these circumstances. We asked the parties, in particular the Board, to address this concern in its submissions. 37We will now deal with the questions of law in the terms found in the notice of appeal.
(1) Whether, on a proper construction of the Education Act, the test for a decision of the Board to make a recommendation under s 59 of the Act is the same as a test for a decision of the Board to make a recommendation under s 57A(1) of the Act? 38This question deals with an aspect of the Tribunal's consideration of the possible alternative of reduction of registration as a sanction. At [95] of its reasons the Tribunal said: The 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). 39We have already dealt with the Board's objection to the first sentence in the above statement. 40In the second sentence, a comparison is made between the Board's power under s 57(3) in relation to recommending reduction of registration and the Minister's power under s 59 in relation to acting on a recommendation for cancellation. The Board objected to what it saw as an elision of the two provisions. The Board disputed that the provisions were 'essentially the same'. 41When considering whether to reduce registration, the Board and the Minister were entitled to act in circumstances where these bodies are 'not satisfied that the requirements for registration are being complied with' (s 57(3), the Board; s 57A(2), the Minister). The Minister's power to cancel, and, on the Board's submission, by implication the Board's authority to recommend, depend on whether the Minister 'is satisfied that the requirements for registration are not being complied with'. We agree with the Board that the latter is a different and tougher test than the one that applies to reduction of registration. 42The Minister must be able to find that the requirements are not being complied with, whereas in the reduction of registration it is a lack of satisfaction as to compliance that is sufficient to warrant action. These differing standards are understandable given the differing severity of the sanctions. 43Accordingly, we accept that the Tribunal erred in describing the discretions as 'essentially the same'. 44The Board then went on to argue that if the Board detects a breach of a registration requirement it must recommend cancellation to the Minister, and that it can not engage in alternative approaches such as considering reduction of registration. This argument was put in support of a submission that, as the Tribunal had found breaches of the registration requirements at para [84] of its reasons, it was obliged like the Board is said to have been, to recommend cancellation. Para [84] appears in part (iii) of the Tribunal's decision. At the point it was considering the issue of whether the requirement of registration found in s 47(g) to provide a safe and supportive environment had been met. It had, as already noted, excluded from consideration the enrolment register concerns and the Commonwealth provider approval concerns. 45The Tribunal summarised its findings as follows: 'There are three ways in which we have found [the school] to be non-compliant with providing a safe and supportive environment to students. The OPPM [the school's internal procedures manual] refers to wrong or non-existent legislation in relation to child protection, ANC did not comply with s33D of the CCYP Act [the Commission for Children and Young People Act 1998 (NSW)] in relation to Mr Wakeling [a teacher, in relation to the appointment and record checking procedure] and [the school] has effectively condoned an unacceptable level of unexplained absenteeism.' 46Even if it is the case (which we doubt) that the Board is obliged to report to the Minister once a breach of a registration requirement, however minor, is detected, we do not consider that the Tribunal's authority is conditioned in the same way. It is not obliged, having found a breach of a registration requirement, to recommend cancellation. 47As we have suggested above, we consider that the power to make an alternative recommendation to the Minister is to be interpreted generously, and in furtherance of the objective of finding the most appropriate resolution to disputes of this kind. The school, for example, in its submissions to the Tribunal sought to argue that it had taken steps to respond to the adverse findings, and asked the Tribunal to consider its actions. Among them had been replacement of the principal in the period since the Board's notification. In principle, we think that this kind of explanation should be open to be considered by the Tribunal; and not foreclosed by a prior breach. 48The next three questions traverse related issues.
(2) Whether, on a proper construction of s 47 of the Act, it is a requirement of registration that a non-government school maintain a register of enrolments and attendance?
(3) Whether, on the proper construction of s 64 of the ADT Act, the Manual or any parts of it is contrary to law and therefore not Government policy binding on the Tribunal?
(4) Whether, on the proper construction of the Act, the keeping of a register of enrolments and attendance cannot be considered as part of any decision concerning the registration of that school? 49The Board inspectors' report referred to the failure of the school to have a register that complied with s 24 of the Act, and to record the details required by the Minister and details required by the Manual, in particular the proper use of 'common codes' for reporting a range of matters. In support of its case that the s 24 rule was a requirement of registration the Board referred to its Manual, and the status accorded to it by s 64 of the ADT Act, as a government policy. 50The Tribunal, in line with its conclusion that the maintenance of registers of enrolment and attendance was not one of the 'requirements of registration' under s 47, held that therefore section 3.8 of the Manual in proclaiming otherwise was beyond power and 'contrary to law'. So it did not consider s 64 any further. 51As to the question raised under (4) above, the Board's argument is one in the alternative. If the Tribunal is right that the s 24 requirement is not a requirement of registration under s 47, can not it be said that nonetheless that the keeping of enrolment and attendance registers falls within the compass of the requirement that schools provide a 'safe and supportive' environment. 52As to the s 24 issue, the Tribunal said: 31 Section 24 is in Part 5 of the Act; s 47 is in Part 7. While the general principle is that provisions should be interpreted in the context of the Act as a whole, dividing an Act into parts often has some significance. If an Act is divided into parts, it can be assumed that each part is intended to deal with a different subject matter. When interpreting legislation, a provision in one part of the Act should not be read as relating to a provision in another part of the Act unless it is clear from the wording of the section that it must be read in that way: Machon Paull Partners Pty Ltd v Leichhardt Municipal Council (1981) 44 LGRA 1 at 5. 32 Section 24 is a penal provision. A principal of a school commits a criminal offence punishable by a fine if he or she fails to comply with that provision. The provision places no duty or obligation on the proprietor of the school. In this case, it is apparent that Part 7, relating to the registration of non-government schools, is a separate and self-contained part of the Act. There is no apparent connection between Part 7 and the criminal sanction in s 24 which is in Part 5 headed "Attendance of Children at School". 33 An example of a provision in Part 7 which does relate to a provision in another part of the Act is s 47(j). That provision makes it a requirement of registration to comply with minimum curriculum standards set out in Part 3 of the Act. Section 47(j) expressly picks up provisions in Part 3. If the intention of the legislature were to include as a requirement for registration, the obligation to keep a register of enrolments and attendances, s 47 would have referred to s 24 of the Act. Alternatively, s 47 would have included an express obligation about the keeping of an enrolment and attendance register. 34 Section 47 is expressed to be an exhaustive list of the requirements for registration. It states that, "For the purpose of this Act, the requirements for the registration of a non-government school are as follows:". There is no reference to "other matters" which the Board or the Minister may take into account. 53On the other hand, the Tribunal did regard the findings made by the Board as to the school's inadequacies in relation to oversight of the level of absenteeism as relevant to the requirement to maintain a safe and supportive environment. 54The Tribunal opened its discussion of s 47(g) as follows: 72 The 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. 73 We 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. 74 The 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." 75 ANC 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. 55Consideration. The Board conceded that there is no express reference in s 47 to the subject matter of s 24 being a requirement of registration and no words directly reflecting the terms of s 24 appear in s 47. However it argued either: (a) the keeping of a s 24 register of enrolments and attendances should be regarded as a requirement of registration by necessary implication having regard to the aims and objectives of the Education Act, and the key function of school attendance in ensuring appropriate educational outcomes; or (b) a matter of this kind is encompassed by the expression 'a safe and supportive environment'. 56The Board referred to the principles on which the Act is based (set out in s 4), the principal objects (s 5) and the objects for the administration of the Act or of education (s 6). The Board also referred to specific statutory requirements that bear on the Board, for example the need to have regard to records of achievement when undertaking accreditation (s 92) and the conditions that govern the grant of Higher School Certificates which include attendance at a registered school, have satisfactorily completed those courses and have undertaken the requisite examinations and other forms of assessment. The Board submitted that it is necessary to have a proper enrolment and attendance process to ensure that these standards are met. The Board also referred to the reporting obligations to the Minister (s 47(l)), and the centrality of registers of enrolment and attendance to that process. 57The Board's show cause process did not proceed on this basis. Its inspectors assessed the school's practices by reference to the Manual, and it placed this matter in the section dealing with the requirements of registration. The Board's report made no reference to a justification based on the accountability requirements in s 47(l). This argument was introduced for the first time at the appeal, and, in our view, the respondent rightly complained as to the alteration in the case. 58The Board also referred to the terms of s 131 (set out above), noting that the Board could make guidelines with respect to the requirements for registration and accreditation (sub-s. (1A)), as long as they were 'not inconsistent with this Act' (sub-s. (1)). It argued that this was a wide authority. 59The Board's submissions in reply (10 October 2012) at [18] themselves acknowledge the awkwardness of the relationship between what is said in the Manual and what is said in the Act: 'The Manual was written to inform educators of the legal implications of the Act in respect of registration and accreditation. It was not written to be simply another version of the legislation. The criticism implicitly made of the Manual overlooks the fact it was designed to be of assistance to educators, including every aspect of registration. If the Manual was written to more tightly conform to the Act, it would be less useful for those utilising the Manual.' 60At [19] the submissions continue: 'The finding that the making of part 3.8 of the Manual was inconsistent with s 47(g) should not be allowed to stand. Part 3.8 of the Manual is an extension of s 47(g) by way of elaboration, but it is not inconsistent and it is not beyond power. The Manual simply expands and explains s 47(g), but that is precisely what the Manual is designed to do and precisely why the Board was given the power, under s 131(1A) of the Act, to set out guidelines with respect to the requirements of registration and accreditation.' 61The history of s 47 shows that the list of matters seen as 'requirements of registration' has changed over the years. At no point in that history is the subject of maintaining attendance registers expressly mentioned. 62In the 1990 Act, as enacted, the requirements were more narrowly cast than today's s 47. Section 47 then provided: For the purposes of this Act, the requirements for the registration of a school are as follows: (a) 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 (iii) in the case of a school providing secondary education for children during Year 11 and Year 12-the curriculum for students who are candidates for the Higher School Certificate, (b) teaching staff with the necessary experience or qualifications (or who are regularly supervised by teaching staff with the necessary experience or qualifications) for the school, (c) educational facilities that are adequate for the courses of study provided at the school, (d) the provision of courses of study that are appropriate for the students at the school, and (e) school premises and buildings that are satisfactory. 63A later amendment made prior to 2004 added: (f) official school policies relating to student discipline that do not permit corporal punishment of students attending the school. 64Presumably, the Parliament did not consider the very important subject of policies in relation to discipline and punishment to be a requirement of registration until this amendment. 65Section 47 as it appears today is traceable to major amendments made by the Education Amendment (Non-Government Schools Registration) Act 2004, No 15. Section 47(g) ('safe and supportive environment') was explained as follows (Second Reading Speech, Leg. Assembly, 18 February 2004): 'New section 47(g) requires schools to provide a safe and supportive environment for students. The requirement is aimed squarely at providing the best policy settings to ensure the safety and welfare of students. It concerns the extent to which a school has formal policies and procedures that establish a safe and caring environment in which students are nurtured and which responds to each student's personal and social needs. It also concerns the extent to which a school is complying with child protection responsibilities. The provision will require schools to have policies in place providing for a safe and supportive environment. These policies will need to touch on matters such as security, supervision, pastoral care and supportive environment.' 66The speech continues on this point by referring to the Government's initiatives in relation to child protection and child protection mandatory reporting. It concludes: 'We want to ensure that there is no doubt about what schools' obligations are and that their obligations are followed through with clear and specific policies'. 67These comments make no reference to the register requirement, important as that is. 68The Tribunal was prepared in its reasons to accept a general connection between the requirement to have a 'safe and supportive environment' and the maintenance of an enrolment and attendance register. But it was not prepared to go so far as to drill the requirement down to one of strict compliance with s 24 or with the detailed provisions of the Manual, section 3.8. 69The overall heading for section 3 of the Manual is 'Requirements for Registered Non-government Schools'. Somewhat confusingly, the internal organisation of this part of the Manual does not follow the order of s 47, and the internal headings move between headings that are clearly referable to a particular paragraph of s 47 (for example, section 3.6 ('safe and supportive environment') is clearly referable to s 47(g)) while others such as 'attendance' can not be cross-referred in this way. The Manual asserts that the subject of 'attendance' as elaborated at 3.8 is a requirement of registration. 70It is clear that s 24 is the starting point of the Manual's treatment of the subject, and it refers to the requirements of the form as approved by the Minister in 2010, requiring adoption of 'common codes' for a range of matters of importance. The s 24 duty resides in the principal. The Manual imposes its obligations on the registered school. 71Like the Tribunal did, we attach significance to the fact that the s 24 requirement is in a different part of the Act. Part 5 is headed 'Attendance of Children at School'. The provisions are concerned primarily with administration of the compulsory school attendance obligation. By definition, this school was not one that had any students enrolled to whom the compulsory school attendance obligation attached (it expires at the end of year 10, regardless of age: see now s 21B). On the other hand, we accept that s 24 is drafted in such a way that it does cover later year school environments in that it encompasses 'children' generally not just 'children of compulsory school age', see, for example, s 24(3)(b). There is no definition of 'children' in the Act, and the evidence before the Tribunal was that the school population did include people over 18 years of age. 72In our view, this debate points to the difficulty of having very generally-expressed statutory provisions as is seen in s 47 standing above a very important sector of public administration. The regulatory model reflected in the Education Act clearly leaves very substantial independent authority to the Board, with its special expertise, and gives it wide power to frame detailed standards by means of instruments such as the manual. The phenomenon of year 11 and 12 schools specialising in the education of overseas students is one of relatively recent times. This phenomenon receives no direct attention in the Education Act. 73 We have no difficulty with the proposition that the maintenance of attendance registers is a vital aspect of the day to day administration of schools, and that it serves an accountability function. 74However, we think there is a great danger to regulated parties in acceding to an argument based on 'necessary implication'. Regulated parties should be confident, as we see it, that they can rely on the express terms of a statute to provide direction as to what matters they need to attend to for the purpose of obtaining registration and in order to maintain registration. 75In our view, the contents of 3.8 of the Manual are not capable of being made an additional requirement by necessary implication. As to whether the contents of 3.8 of the Manual should be seen as simply an aspect of those matters that can properly be seen as affording a 'safe and supportive' environment to students, our view is that they can not. 76Our view, informed by the legislative history, is that this provision has as its concern, those matters which, in the Minister's words, assure a 'safe and caring environment in which students are nurtured and which responds to each student's personal and social needs'. These are matters of a pastoral kind separate from any obligations a school has to maintain attendance records, and to account for various matters that are readily able to be collected in the context of managing a roll. 77Nor do we agree with the submission that this is an instance where the broad authority given by a power to make regulations (or in this instance guidelines) that are 'not inconsistent' with the Act is engaged. As to the breadth of such a power, see, recently, Plaintiff M47/2012 v Director General of Security [2012] HCA 46 per French CJ at [53] ff; and Crennan J at [382] ff. In our view, s 47 read alone, and read in the context of the Act as a whole, is intended to be an exhaustive statement of the requirements of registration. There should be regulatory certainty in a matter of this kind, and, in our view, s 47 seeks to achieve that, despite the vagueness of the language used in some parts of the provision. The Note to s 47 reflects that view. 78Accordingly we do not consider that the Tribunal erred in law in relation to the questions (2), (3) and (4). 79In our view, s 47 should be amended to overcome the problem identified by this case.
(5) Whether, on the proper construction of the Act, arrangements by non-government schools for the accommodation of its overseas students cannot be considered as part of any decision concerning the registration of that school? 80This question involves the same problem of statutory interpretation that faced the Tribunal in relation to the enrolment register requirement. The subject is not mentioned in s 47. Again, the Board argued that adherence to these matters was necessarily to be implied as a requirement of registration for the purpose of s 47. 81These issues are dealt with in some detail in the inspector's internal review report at 5.2 (Approval of School Provider). The report noted for example that under the approval guidelines an approved school provider is required to approve the accommodation and welfare arrangements of any student it enrols who is under the age of 18 years and who is not living with a parent or suitable nominated relative. Further, in such cases the school provider must ensure that the arrangements made serve to protect the personal safety and well being of those students. The inspector had a number of criticisms of the procedural documents and the practices of the school in this regard. He expressed dissatisfaction as to the extent to which the school had carried out its obligations in relation to students under 18, after reviewing a sample of files and interviews with staff. 82In our view the legislation is quite unclear. The ordinary understanding, we think, of the words 'safe and supportive environment' is that they refer to the physical environment of the school, extending to the relationship whether on or off school premises with persons in relationships of trust and authority such as teachers and other staff. The second reading speech speaks of wider matters such as pastoral care and supervision. It does not descend to the specifics of accommodation management as it relates to overseas students. 83Clearly the school had specific obligations under Commonwealth law. But the regulatory system is a bifurcated one. While the delegated arrangements as at 2010 gave authority to Board inspectors to examine schools for compliance with Commonwealth standards, the ultimate enforcement authority remained with the Commonwealth Minister or delegate. There is nothing expressly stated in the Education Act that responds to the phenomenon of Commonwealth involvement in the field of State education, and there is nothing said about the way in which the State authority is to address perceived non-compliances with Commonwealth law within its own regulatory apparatus. 84At hearing the Board mounted a case that the school's perceived non-compliances with the Commonwealth approval as it related to monitoring accommodation arrangements could be seen as covered by the requirement of registration, s 47(i): (i) if the school provides boarding facilities, whether itself or by contractual arrangement-school policies and procedures that are satisfactory to ensure the safety and welfare of boarders, 85No case of this kind was put to the respondent in the Board's show cause process, nor was it put before the Tribunal. 86In our view, this provision refers to 'boarding' as used in the term 'boarding school', i.e. a facility which provides on-site 24 hour residential accommodation to students during the school year. This school was not of this kind. Its premises were a floor in a building in the CBD. Its enrolment was in the mid-50s in number when the notification was given on 1 July 2011. These students, all from overseas, lived off-site in arrangements approved by the school, but, with which, as we understand the material, the school's staff had no further association. The arrangements involved a private provider and they were scattered. In our view, this is not the kind of situation to which s 47(i) is referring. 87We reject this ground of appeal.
(6) Whether, on a proper construction of s 108(1)(d) of the Act, the Tribunal has power to reduce the period of accreditation of a non-government school? 88For the reasons given earlier in relation to reduction of registration, we uphold this ground and agree that it does not.
Leave to Extend to the Merits; Utility and the Disposition of this Appeal 89The appeal has failed substantially in relation to the question of law grounds. While the Appeal Panel may extend an appeal to the merits regardless of the outcome on the question of law points, we are not satisfied that this is an appropriate course in this case. Given our conclusions, we too would exclude from view material that the Board sees as relevant to the requirements of registration. We would be left with the same body of material that the Tribunal actively considered. It had the benefit of hearing oral evidence directly from the respondent's functionaries, and assessed their explanations for the way the school was run. The Tribunal was not impressed, and felt the school should close, but did not see it as appropriate to deal with the matter by way of orders of cancellation. 90In our view, the proper order is one that allows the appeal in part and replaces the Tribunal's order with one that conforms to the scheme of s 108. 91It is for the Minister to decide whether to accept or reject the different recommendation. 92If the Tribunal's recommendation were to prevail with the Minister, the result would be the s 47(c) bar would not apply to future applications from those responsible for the school's management and direction. But the Tribunal's reasons, and those of the Board, would remain as considerations relevant to any future application from those persons.
Costs of the Appeal 93There is a contest over the question of costs. The submissions of either party are found in the exchange of written submissions that occurred between 25 September and 10 October. 94The school applied for its costs of the appeal. The submissions are set out in its submissions filed 3 October 2012, at paras [111]-[140]. The Board's submissions in reply filed 10 October 2012 respond at paras [40]-[84]. The extent of these submissions is a product of a number of allegations made in the school's costs submissions as to the way the Board conducted its case before the Tribunal and on appeal. Not surprisingly, the Board saw it as necessary to respond in some detail. 95The primary rule is: 'Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section.' (ADT Act, s 88(1)). The Act continues: '(1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following:'. A series of factors bearing on the fair and reasonable conduct of proceedings are set out. 96Necessarily, the submissions on costs were made ahead of the outcome of the appeal being known. 97It will be seen from our reasons that we have upheld the Board's appeal as it relates to major points of concern to it relating to the Tribunal's order-making power, and the relationship of the Board and the Tribunal to the Minister. While we have endorsed the Tribunal's reasoning in relation to the non-consideration of the Board's case insofar as it is asserted that adherence to section 3.8 of the Manual is a requirement of registration, and non-consideration of the Board's case in respect of the school's accommodation practices and procedures, we accept that the Board's case was a reasonably arguable one. 98We do not see any benefit in dealing item by item with the contests between the parties as to whether the Board conducted its case at first instance in a reasonable manner. This application is for the costs of the appeal. In relation to the conduct of the appeal, we have no concerns. 99There will be no order as to costs.
Order
Board of Studies
ANC High School Pty Ltd
Appeal allowed in part; Tribunal orders set aside and replaced with orders that the Tribunal does not confirm the Board's recommendation and makes different recommendations to the Minister that the period of registration and accreditation be reduced to expire on 31 December 2012; leave to extend appeal to the merits refused; respondent's costs application refused and no order as to costs.