DFD v New South Wales Education Standards Authority

NCAT Administrative and Equal Opportunity|2017-09-25

Overview

This is an application for review pursuant to the Administrative Decisions Review Act 1997 (NSW) and s107(1)(d) of the Education Act 1990 (NSW) of a recommendation of an authorised person that the Minister for Education refuse to register a child for home schooling. Pursuant to s 108 of the Education Act the Tribunal has the power to confirm the recommendation or make a different recommendation.
The applicant is the mother of the child who I shall refer to as E.
The respondent, the NSW Educational Standards Authority (NESA), is a body corporate constituted under the Education Standards Authority Act 2013 (NSW) and is responsible for administering the programme under the Education Act for registration of children for home schooling. NESA was formerly known as the Board of Studies, Teaching and Educational Standards.
At the hearing of the application I made orders pursuant to s 64 of the Civil and Administrative Tribunal Act prohibiting the publication of the name of the applicant or her son, the subject of the decision under review.
At the hearing the applicant was assisted by Ms K Gribble who described herself as a friend of the applicant. I permitted Ms Gribble to make oral submissions on behalf of the applicant. The respondent was represented by Mr D Birch of Counsel.
Each party had filed a bundle of documents and submissions. The whole of each bundle was received in evidence without seeking to distinguish between evidence and submissions.

The applicant's response to the internal review decision

The applicant did not dispute the accuracy of most of the factual matters upon which the internal reviewer had based her refusal to recommend registration as set out at [9] above. The applicant did dispute the matters stated by the internal reviewer in sub-paragraphs (d) and (g).
In response to sub-paragraphs (a), (b), (f), (h) and (k) the applicant submitted that the matters there set out were not "a just reason to refuse registration".
In respect of sub-paragraphs (e), (f) and (l) the applicant did not dispute that the sub-paragraphs "stated the respondent's policy" but challenged the policy and argued that it should not have been followed.
In respect of sub-paragraph (d) the applicant disputed that she could have chosen to enrol E in a school before he turned 6 on the basis that, by reason of his disability, E could not be enrolled in a school. The applicant further submitted that in any event that was not a just reason to refuse registration.
In respect of sub-paragraph (g) the applicant disputes that registration for home schooling "does not provide 'recognition' that a child is 'undertaking' schooling". The applicant submits that registration for home schooling is the only way of proving to various authorities, including Centrelink, that a child is undertaking home schooling.
In respect of sub-paragraph (i) the applicant submitted that the respondent is required to have regard to the object of "assisting each child to achieve his or her educational potential". The applicant submits that "registration would promote the education of [E] by facilitating access to resources to support his education". The applicant submits that in order to have regard to the object set out in Section 6(1)(a) of the Education Act NESA was required to recommend E's registration for home schooling even before he reached 6 years of age.

The applicant's submissions

The applicant submitted that there is no legal impediment to NESA recommending the registration of E for home schooling. The applicant referred to the decision of Senior Member Walker in DMM v Board of Studies, Teaching and Educational Standards [2016] NSWCATAD 38 (DMM v BOSTES) which determined that the word "child" in s 71(1) meant a person under the age of 18 rather than a narrower interpretation meaning "a child of compulsory school age".
The applicant further submitted that, as at the date of assessment, E was 5 years and 8 months of age and was of "normal school age" and therefore should have been able to be registered for home schooling.
The applicant referred to statistical evidence produced by the NSW Department of Education's Centre for Education Statistics and Evaluation which showed that 79% of kindergarten students in NSW government schools had not turned 6 by the middle of the school year and also referred to the NSW Education Department policy that children can start kindergarten at the beginning of the school year if they turn 5 on or before 31 July of that year, which effectively permits children to enrol in school at 4 years and 6 months of age.
The applicant submitted thirdly, that to permit E to be registered for home schooling would be consistent with the intention of the Act in supporting home schooling as being equal with government schooling and non-government schooling.
The applicant referred to the principal objects of the Act set out in s 5, which include, along with the establishment and operation of government schools and the registration of non-government schools, "to allow children to be educated at home".
The applicant referred at length to the Parliamentary debates on the Education Reform Bill 1990, which subsequently became the Education Act, although not to the explanatory memorandum or second reading speech.
It appears that similar material was put before the Tribunal in DMM v BOSTES. At [48] the Senior Member stated: The applicant submits that the extrinsic materials favour her position and cites several passages from the parliamentary debates averring that the new Act will give home schooling equal status with school attendance ([Parliamentary Debates, Legislative Assembly, 29 March 1990] pp 2021, 2792, 3029 3086, 3093, 2015, 2086). The second reading speech by the minister, Dr Metherell, is less explicit, however. After pointing out that the 1987 Act merely refers to the minister's power to grant exemption if satisfied that the child receives appropriate regular and efficient instruction at home, Dr Metherell said, "That is all that is said. In this area the advantage of the Education Reform Bill is that it clearly expresses the process under which registration for home schooling is to be considered and granted" (p 1352). The parliamentary debates therefore do not add a great deal to the inferences that can be drawn from the legislative history and from construing the Act as a whole.
The Senior Member also referred to the second reading speech at [32] where he stated: The minister's second reading speech (Parliamentary Debates, Legislative Assembly, 29 March 1990, p 1352) explained that under the 1987 act the exempting power for home schooling was required only for children in the compulsory school age bracket. The speech showed that the purpose of the new provisions was more carefully to regulate home schooling and to ensure that during the compulsory ages, children would be properly educated. It was not to confer more benefits on home-schooled pupils. The speech drew the link between the old Act and the purpose of the new regime. The purpose of the registration provisions was spent once the pupil was over 17. The 2009 amendments did not alter that position.
The applicant also relied upon a comment in DMM v BOSTES at [45] where, in response to a submission that: "The creation of a regulatory system that was made possible by registration showed a legislative intention to restrict the availability of home schooling, not to treat it on an equal basis with public and private schooling",
the Senior Member stated: "In my view, however, the Act alters the position of home schooling from being an exceptional type of instruction that is likely to be so uncommon that it can be handled on a case-by-case basis, into an accepted form of education that is treated as equivalent to schooling for most purposes. The establishment of a regulatory structure, rather than being intended to restrict the availability of home schooling, appears to contemplate that it will become more common and it is therefore necessary to have settled procedures to ensure that it will be conducted in a proper manner. As the applicant points out, the Education and Public Instruction Act 1987 mentioned home schooling only once, and that was in the context of the minister granting an exemption from school attendance. In the present Act, however, the term "home schooling" is used 42 times."
The applicant submitted, fourthly, that the respondent has an obligation to administer the Act in such a way as to facilitate the best educational outcomes for children and that by adopting an inflexible policy that prevented a child under the age of 6 from being registered for home schooling, NESA was failing to have regard to the objects of the Act. The applicant referred to paragraphs [46] and [47] of the decision of Senior Member Walker in DMM v BOSTES where the Senior Member stated: 46 It is notable also that among the principal objects of the Act as set out in s 5 is "to allow children to be educated at home". Also in part 2, which sets out the objects of the Act, s 6 states that "It is the intention of Parliament that every person concerned in the administration of this Act… is to have regard (as far as is practicable or appropriate) to the following objects: …(e) mitigating educational disadvantages arising from the child's gender or from geographic, economic, social, cultural, lingual or other causes,…(k) provision of special educational assistance to children with disabilities". 47 The respondent submitted that s 6 relates only to the administration of the Act and has no bearing on the construction of s 71(1). But the provisions of s 6 are plainly intended to be more detailed instances of the kinds of priorities that are to govern the operation of the Act. And "every person concerned in the administration of this Act" would appear to include the board and this tribunal. Further, s 5 is unequivocal in declaring home education to be one of the Act's principal objects. Taken together, those points favour an interpretation that will more broadly promote those objects, rather than one that treats s 71(1) purely as a refinement of the exemption process.
The applicant recognised that the obligation to have regard to the objects of the Act was imposed only "as far as is practicable or appropriate" but submitted that it was not onerous or difficult for NESA to register E for home schooling before his 6th birthday. The applicant submitted that to do so would not disadvantage any other student but would be of assistance to E.
The applicant cited paragraph [49] of the decision in DMM v BOSTES in which the Senior Member observed: The respondent submitted that registration in itself confers no benefit under the Act. In that respect the board may be underestimating the value of registration for a child facing special challenges. The applicant observes that ER is experiencing anxiety and uncertainty from her lack of official educational status. It is well known that children and adolescents do not like to feel different from their peers, and in this case ER feels that she is in "a no man's land". Registration in itself, quite apart from conferring the ability to obtain student concessions, appears to have an intrinsic value for a child in her position and therefore would assist in achieving the objects set out in s 6.
The applicant also referred to the decision of an Appeal Panel of this Tribunal in NSW Education Standards Authority v DMM [2017] NSWCATAP 149 at [104] to [107]: 104 In making this submission the appellant conceded that there may be consequences for the child because the certificate of registration expires. However the appellant said any collateral benefit that was lost, such as obtaining a concession relevant to secure admission to university, was not a relevant consideration in determining an application for registration for home schooling or the period of registration. 105 In our view this submission should not be accepted. This submission seeks to compartmentalise the process of education and interpret the Act in a manner inconsistent with its terms. 106 … the Act clearly recognises a process of education that begins at Kindergarten and extends up to Years 11 and 12. That may or may not involve the attainment of awards under Part 8 Division 2 of the Act, a matter dependent on both achievement and the education model (ie school or home schooling) selected. 107 While children may receive less or no direct benefits from the State because of the education model chosen by their parents, the proposal for education and any indirect benefits arising from registration are matters relevant to registration and the terms on which it is approved. The objects specified in the Act allow flexibility in the education model, subject to any process of approval being on terms that satisfy the obligations of a parent and the State under the Act.
The applicant submitted that "extending registration to home school students who are of school age but younger than 6 years is absolutely necessary to prevent discrimination against home school students who have experienced disability".
The applicant submitted that the work involved in preparing and presenting an application for home schooling registration would ensure that a recommendation for the registration of E before his 6th birthday would not result in a flood of applications.

The Respondent's submissions

The respondent contended that the issues of substance in the application were: 1. Whether under s 71 of the Education Act E was eligible for registration for home schooling before the age of 6 years; and 2. If E was eligible, whether the correct and preferable decision was for E to be registered, having regard to the government's unambiguous policy against the registration of children for home schooling before the age of 6.
The respondent submitted that s 71, properly construed, limits the entitlement of a parent to apply for registration of a child for home schooling to a child that is above the age of 6 years. The respondent acknowledged there was no express limitation within s 71 as to the lowest age at which registration may be granted. The respondent submitted that construing s 71 as so limited is consistent with the "broader statutory regime in the context of which it forms part". The respondent referred to the Appeal Panel decision in NSW Education Standards Authority v DMM at [89] and submitted that the Appeal Panel expressly connected the capacity to be registered for home schooling with the existence of a duty on the parent to educate the child for the period of registration.
Paragraph [89] of the Appeal Panel's decision was as follows: It follows that a student to be registered for home schooling must also be a child (under 18) at the commencement of the period for which they are to be registered. Otherwise, there would be no existing duty on the parent to educate the child at the commencement of the period of registration (because the child was 18) and no right of the child to otherwise be enrolled and attend a government school in his or her designated intake area.
The respondent submitted that under Part 5 of the Education Act there is no duty on parents to educate a child before the age of 6.
The respondent sought to distinguish the decision in DMM v Board of BOSTES on the basis that that case considered the upper age limit at which a child could be registered for home schooling. The respondent submitted that, given the use of the term 'child', the "possible ages that could be embraced by the applicant's construction" was necessarily limited to a couple of years being ages at which children are typically at school (ie 17 to 18 years old). The respondent submitted that: "The interpretational choice in this case is different. It concerns the minimum age at which a child might be registered for home schooling under s 71."
The respondent submitted: "For the minimum age the concept of 'child' does not set a lower limit. That is because the 'literal' interpretation of the term 'child' extends down to birth".
The respondent submitted that it would be manifestly contrary to the purpose of the Act and the structure of the Act as a whole to adopt a construction of the term 'child' in s 71 which did not fix a minimum age at which a child might be registered for home schooling.
The respondent submitted: "Absent any other basis in the Act for limiting the minimum age at which a 'child' might be registered for home schooling under s 71, and having regard to the core purpose of registration for home schooling being the education of children at home without attending a school during the compulsory school age, the sensible construction of the minimum age of the term 'child' for the purposes of s 71 is the age of 6 years, being the age at which a child becomes 'of compulsory school age'".
The respondent also sought to distinguish the decision in DMM v BOSTES as "particularly focussed on the circumstances of a particular child whose registration was an issue in that case".
In support of the submission that, if s 71 did permit the registration of a child under the age of 6 for home schooling, the decision not to recommend registration of E before he turned 6 was nevertheless the correct and preferable decision, the respondent submitted that any recommendation that E be registered from 15 February 2017 would be futile as no relief would be consequential upon that recommendation.
The respondent also relied upon s 64 of the Administrative Decisions Review Act which provides: 64 Application of Government policy (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal must give effect to any relevant Government policy in force at the time the administratively reviewable decision was made except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case. (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 an administrative review under this Act of an administratively 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.
The respondent submitted that the "Registration for Home Schooling in NSW - Information Package" was a policy applied by an administrator for the purposes of s 64(4) of the ADR Act, and one to which the Tribunal may have regard.
The respondent also relied upon a document not apparently taken into account by the respondent's internal reviewer. The document is a schedule attached to a letter from the then Premier of NSW dated 13 July 2015 addressed to the Director of the NSW Parliament "Select Committee on Home Schooling". The letter states: "Please find attached the NSW government response to the inquiry of the NSW Legislative Council Select Committee on Home Schooling."
The schedule attached to the letter sets out what are apparently 24 recommendations made by the Select Committee and the "NSW Government Response" to each recommendation.
Recommendation 7 was: "That the Minister for Education review the registration requirements for home schooling so as to allow students from 4.5 years to 19 years to be registered for home schooling".
The NSW government response is recorded as: "Recommendation not supported. The Education Act requires the compulsory schooling of children aged 6 to 17 years. Parents are free to choose to home school their children outside of this compulsory schooling period without formal registration."
The respondent submitted that the Government's Response to the Home Schooling Inquiry was a document adopted by the Premier expressing the government's policy and therefore a document to which, by virtue of s 64(1) of the Administrative Decisions Review Act, the Tribunal must give effect. In the alternative, the respondent submitted that the document demonstrates that the policy stated in the Information Package has been "exposed to parliamentary scrutiny".
In that regard the respondent relied upon the statement by Brennan J, as President of the Administrative Appeals Tribunal, in Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634 at 645: When the tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the tribunal will ordinarily apply that policy in reviewing the decision unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny. [Emphasis added]
That statement sets out the policy that is adopted by the Administrative Appeals Tribunal in relation to the application of Ministerial policies. Elements of that statement have been given statutory force in s64 of the Administrative Decisions Review Act and, for that reason, the statement must be applied with caution in the exercise of this Tribunal's administrative review functions.
The respondent submitted that: "It is necessary for administrative workability that a particular minimum age be determined, so that a uniform approach can be taken by the 'authorised persons' empowered to make recommendations under s 71…Without a single age-based criterion to be applied in the assessment of applications for home schooling registration, the respondent's ability to deal effectively with applications would be prejudiced."
The respondent submitted that the selection of the age of 6 as a minimum age at which children may be registered for home schooling has a rational basis in that it is the compulsory school age under the Act.
In oral submissions Mr Birch expanded by submitting that the respondent's concern is that it does not want to be left in a position where there is no objective standard by which the assessor might determine the age at which a child can be registered for home schooling. The respondent does not wish to be in a position where assessors are required to assess the educational capacity of very young children.
The respondent submitted that this rationale lies behind both the Information Package and the government response to the Select Committee.
Mr Birch pointed out that the operative effect of registration for home schooling under the Education Act was that by virtue of s 23(1) a parent of a child of compulsory school age does not commit an offence by failing to cause the child to be enrolled at and to attend a government school or a registered non-government school.
The respondent sought to distinguish the decisions in DMM v BOSTES and Education Standards Authority v DMM on the basis that the educational benefit of registration for home schooling in each of those cases was, in the former case (citing paragraphs [19] to [21] and [49] to [50]), "uncontested medical evidence that the registration as a home school student would be beneficial for [the relevant student's] education, as the lack of official educational status was causing anxiety", and that the benefit arising from registration in NSW Education Standards Authority v DMM involved "obtaining a concession relevant to securing admission to university".
The respondent submitted that, although those specific educational benefits were found to be relevant to the decision whether or not to register [ER], the student the subject of the decisions in DMM v BOSTES and NSW Education Standards Authority v DMM, in this case the only alleged benefit to E is a financial benefit to the parent, which may or may not in individual cases have indirect benefits to the child's schooling.
The respondent did not concede that the email the applicant had obtained from the Department of Human Services was a statement of Commonwealth Government policy or clear evidence that the registration of E for home schooling from February 2017 would be of benefit to E. Nevertheless the respondent further submitted that an assessor seeking to determine whether a child under the age of 6 should be registered for home schooling would not be in a position to know whether there would be any benefit to such a child being registered for home schooling as the assessor could not possibly be in a position to know whether any particular child would be eligible for Commonwealth benefits as a result.
The respondent submitted that the fact that there was a hypothetical benefit in some cases is not a relevant factor in all cases and does not outweigh the government policy by which the respondent submitted had been confirmed in the face of parliamentary scrutiny.

The applicant's submissions in reply

In reply, Ms Gribble argued that, although it might be sensible to have a minimum age for home schooling, a minimum age of 6 is not warranted. She pointed out that children not being home schooled are not required to wait until the age of 6 to begin education. Ms Gribble suggested an objective minimum age could be fixed by reference to the age at which a child might be permitted to attend school.
Ms Gribble also submitted that the assessment of children under 6 for registration for home schooling would not add to the burden of an assessor as individual assessments are already carried out in order to determine whether the education proposed for a particular child would meet the appropriate educational standards.
Although she acknowledged that the assessors did not assess educational competency by speaking to the child directly to determine whether the child was ready for school, Ms Gribble nevertheless submitted that the assessors were required to assess every situation individually.

Consideration

As noted above, pursuant to s 108 of the Education Act, on an application for review of a recommendation to refuse registration for home schooling, the Tribunal may confirm the recommendation or make a different recommendation to the minister concerning the subject-matter of the application.
In ANC High School Pty Ltd v Board of Studies [2012] NSWADT 125 at [14] the Administrative Decisions Tribunal described the Tribunal's role under s108 as: "to conduct a merits review of the Board's recommendation or decision and decide what the "correct and preferable" recommendation or decision is having regard to the material before it at the hearing: ADT Act [1] , s 63(1) and (2). That is the Tribunal's role despite the fact that s 108 excludes the entirety of s 63 of the ADT Act. Section 108 sets out the orders which the Tribunal may make on review of a decision made under the Act and, to that extent, replaces s 63(3). By excluding s 63, we do not consider it to have been the intention of the legislature to change the nature of the Tribunal's role as set out in s 63(1) and (2)."
The Tribunal's decision in that case was varied on appeal (Board of Studies v ANC High School Pty Ltd (GD) [2013] NSWADTAP 8), but the Appeal Panel did not dissent from the proposition set out. I approach the application for review on the basis that I am required to determine whether the decision to refuse to recommend registration for the relevant period was the correct and preferable decision.

Does s 71 preclude the registration for home schooling of a child under 6?

Although it is correct, as the respondent submits, that both DMM v BOSTES and NSW Education Standards Authority v DMM involved consideration of the upper age limit for registration of a child for home schooling, both decisions addressed the meaning of the word "child" in s 71 of the Education Act and rejected the submission that "child" meant a child of compulsory school-age.
That conclusion is explicit in paragraph [51] of the decision in DMM v BOSTES and it is clear that the Appeal Panel in NSW Education Standards Authority v DMM accepted that the decision in DMM v BOSTES was correct in determining that 'child' in s 71 means a person under the age of 18 and not a person of compulsory school age: see [57] to [58] and also [87] to [89] and [92] to [93].
I am bound to follow the decision of the Appeal Panel and, in any event, I consider that the conclusion is correct.
Once it is accepted that "child" in s 71 of the Education Act does not mean "child of compulsory school-age", there is no basis to limit the meaning of the word to children above the age of 6. In my view, there is no statutory prohibition on the registration for home schooling of a child under 6.

Was the decision to refuse to recommend registration the correct and preferable decision?

I am not persuaded that the objects of the Education Act require the registration of any child of an age at which they would be permitted to attend school (government or non-government). I refer to what Senior Member Walker said in DMM v BOSTES at [32] as set out at [36] above.
At the same time, I do not consider that I am bound to apply a policy that children under 6 should not be registered for home schooling. I am not persuaded that the Government Response document relied upon by the respondent constituted a Government policy for the purposes of s 64 of the Administrative Decisions Review Act.
I am not persuaded that the Government Response to the Home Schooling Inquiry is a document adopted by the Premier expressing a policy that children younger than 6 years old are not to be eligible for registration for home schooling.
Sub-sections 64(2) and (3) of the Administrative Decisions Review Act make provision to facilitate proof that a particular policy was a Government policy, that is by a certificate signed by the Premier or any minister. Whilst a certificate from the Premier or a minister may not be necessary to prove that a policy is "Government policy", in the absence of such a certificate, some other evidence would be required to establish that a policy is "Government policy" to which the Tribunal is required to give effect. See Whitehouse v Commissioner of Fair Trading [2017] NSWCATOD 108 at [39]. I do not consider that the covering letter to the Government Response to the Select Committee, signed by the former Premier, is sufficient to establish that the policy expressed in the Information Package that children will not be registered for home schooling before they turn 6, has been adopted by the Cabinet, or the Premier or a minister.
Nor do I consider that the Government Response document demonstrates that the policy has been exposed to parliamentary scrutiny. In my view the form of scrutiny referred to by Brennan J in Drake is the form of scrutiny which arises where a formally promulgated policy is reviewed and approved (or not disallowed) by the Parliament not, as in this case, where a Parliamentary Select Committee in fact suggested that the relevant policy be changed. (See Drake at 643-644.)
In any event, as noted above, s 64 of the Administrative Decisions Review Act sets out specific rules for the Tribunal relating to the weight to be given to Government policy. In light of that provision I am not persuaded that "parliamentary scrutiny" of any policy would add to the significance of that policy in the process of review by this Tribunal. Section 64 has given particular significance to policies adopted by the Cabinet, or the Premier or a minister, and lesser significance to other policies applied by administrators. It is not clear to me that there is room in that context for greater deference by the Tribunal to a policy which has been the subject of "parliamentary scrutiny".
I accept that the Information Package does state a policy adopted by the respondent to which I may have regard unless it is contrary to Government policy or to law or it produces an unjust decision in the circumstances of this case. I also accept that that policy is reflected in the Government Response document although not explicitly stated in that document.
I am not persuaded that the registration of E for home schooling was required in order that the respondent comply with its obligation to "facilitate the best education outcomes for children", generally or for E in particular.
I consider that the DMM decisions establish that the respondent can, and should, take into account factors beyond the questions whether the proposed home schooling is appropriate and whether the registration is necessary in order to excuse the child from compulsory school attendance. Such further factors would include "any indirect benefits arising from registration". I refer to the passages set out at [40] and [41] above.
I accept that the concerns expressed by the respondent, about the absence of an objective lower age limit for registration and the possibility that the rejection of a blanket policy might lead to assessors being obliged to assess the readiness for formal schooling of very young children, have substance. I accept that the respondent is entitled to take into account the resource implications of assessors being required to undertake the assessment for home schooling of an unknown number of young children who are not of compulsory school-age and therefore do not require registration in order that their parents are not obliged to send them to school.
However, I am not convinced that those concerns necessitate the blanket policy applied in this case.
E was assessed for home schooling in February 2017 because he was about to turn 6. The assessor apparently had no concerns about the appropriateness of the home schooling programme and resources proposed by the applicant. It is apparent that E was undertaking home schooling at the time of the assessment. The assessor recommended the registration of E for home schooling from the date of his 6th birthday.
In my view the considerations raised by the respondent (referred to at [91] above) were not relevant to the decision of the assessor in this case not to recommend registration from the date of the assessment.
The respondent did not seek to suggest that any additional assessment would have been required.
The consequence of a decision that the respondent recommend registration of E from the date of assessment would not be that the respondent would have to undertake assessment of any child in respect of whom an application was submitted, no matter how young the child. Although s71(2) of the Education Act does require that the Minister obtain advice on an application for registration of a child for home schooling "as soon as practicable after such an application is made", it is at least arguable that an authorised person may recommend refusal of an application in respect of a child who is not about to reach compulsory school-age without undertaking a specific assessment of that child or the proposed educational programme. That question does not arise in this case and was not the subject of argument before me. It is not appropriate that I express any firm opinion on that issue.
In this case the respondent, at the applicant's request, undertook an assessment of E at the commencement of the year in which he was about to turn 6 and his compulsory schooling was to begin. The assessor having undertaken that assessment concluded that the educational programme proposed by the applicant was appropriate. In my view the correct and preferable decision was that the registration of E for home schooling be recommended from the date of the assessment.
I accept that there is some force in the respondent's submission that the suggested benefit of the earlier registration of E for home schooling is indirect and uncertain. Nevertheless, I do not accept that a recommendation as sought by the applicant would be futile. There is some prospect that registration of E for home schooling from the date of the assessment would have a benefit for E. In light of the absence of substantial detriment to the respondent from a recommendation that registration take effect from the date of assessment, I will recommend to the Minister that E be registered for home schooling pursuant to s 71 of the Education Act from 15 February 2017 until his 6th birthday.

Orders 1. The Tribunal makes a different recommendation to the Minister, namely, that E be registered for home schooling from 15 February 2017 to the day before his sixth birthday inclusive. 2. Pursuant to s 64 of the Civil and Administrative Tribunal Act the name of the applicant and the child concerned are not to be published to any person other than the parties and their representatives and the Minister for Education.

Endnote

Administrative Decisions Tribunal Act 1997 (NSW), now the Administrative Decisions Review Act. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 28 February 2018

Administrative Decisions Tribunal Act 1997(NSW)

Education Act 1990(NSW)ss 4, 5, 6, 21B, 22, 23, 71, 72, 73, 107, 108

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Judgment (11 paragraphs)

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