DMM v Board of Studies, Teaching and Educational Standards

NCAT Administrative and Equal Opportunity|2016-02-10

This decision has been amended. Please see the end of the decision for details of the amendments.

Applicable legislation

Section 71 of the Education Act provides as follows: (1) A parent of a child may apply in writing to the Minister for registration of the child for home schooling. (2) As soon as practicable after such an application is made, the Minister is to obtain advice on the application from an authorised person. (3) The authorised person is to notify the applicant in writing of a recommendation to the Minister that the application be refused.
Section 72 provides: (1) As soon as practicable after receiving the recommendation of an authorised person about an application for registration of a child for home schooling, the Minister: (a) is to register the child in a Register kept by the Minister for the purpose, or (b) is to refuse to register the child. (2) The Minister is to register the child if the Minister, having regard to: (a) the recommendation of the authorised person about the application, and (b) any decision of the Tribunal on an application for an administrative review of the authorised person's recommendation, is satisfied that the conditions subject to which registration is required to be given will be complied with. (3) The Minister may register more than one child of any one parent for home schooling. (4) If the authorised person recommends that the Minister refuse to register a child for home schooling, the Minister may not do so unless: (a) 30 days have elapsed since the applicant was given written notice of the authorised person's recommendation and no application has been made to the Tribunal for an administrative review of the recommendation within those 30 days, or (b) the Tribunal has determined an application for an administrative review (made within those 30 days) of the recommendation and the Minister has considered any contrary recommendation of the Tribunal and the reasons for it, or (c) any such application for an administrative review of the recommendation has been withdrawn. (5) The Minister is to notify the applicant in writing of the Minister's decision to refuse to register the child for home schooling. (6) On registration of a child for home schooling, a certificate of registration is to be issued for the child to the applicant for registration.
Also relevant are s 22 and part of s 23(1): 22 Compulsory schooling - duty of parents (1) It is the duty of the parent of a child of compulsory school-age to cause the child: (a) to be enrolled at, and to attend, a government school or a registered non-government school, or (b) to be registered for home schooling under Part 7 and to receive instruction in accordance with the conditions to which the registration is subject. (2) That duty is satisfied if the child receives instruction of a kind referred to in section 23 (2). (3) Schooling required by this section is referred to in this Act as compulsory schooling. 23 Offence if parent fails to send child to school (1) A parent of a child of compulsory school-age is guilty of an offence if the parent fails to cause the child: (a) to be enrolled at, and to attend, a government school or a registered non-government school, or (b) to be registered for home schooling under Part 7.
By implication, ss 71 and 72 confer on an authorized person the function of making a recommendation to the minister as to whether or not to register a child for home schooling.
The board takes the view that the issue before the tribunal is solely one of the proper construction of the Act which does not raise for consideration the pros and cons of home schooling generally, its appropriateness for ER, or whether the curriculum and circumstances proposed by the applicant for ER's education are suitable. The board points out that as ER is now 17, the Act no longer requires that she be registered for home schooling in order for her education to take place at home. The reviewable decision does not prevent ER from continuing to be educated at home. There would be no legal compulsion for her to be enrolled at, or attend, a school. The curriculum information provided by the board for the use of parents whose children are registered for home schooling is freely available. It could continue to be used for ER's education, even if she is not registered for home schooling. Consequently the matter does not involve any choice by the tribunal as to whether ER should or should not be able to continue in home schooling.
The applicant is in general agreement with those propositions, but submits that although ER's registration for home schooling is no longer mandatory because of her age, she is nevertheless eligible for it under the Act, and registration would be beneficial for her educational progress and general well-being. The issue in this matter is therefore whether under s 71 of the Act, ER is eligible for registration for home schooling.
It is common ground that while home-schooled students are not eligible for the Higher School Certificate (HSC), there is no legal or administrative impediment to their proceeding to university or other tertiary education institutions. A number of other ranking methods, such as the Australian Tertiary Admission Rank (ATAR) score, the International Baccalaureate and the United States College Board Scholastic Aptitude Test (SAT) are accepted for admission purposes at tertiary level in place of the HSC.

The facts

No oral evidence was called and the facts of the case are not in dispute. The applicant tendered a substantial and well-prepared volume of material in support of her case (exhibit A2). It included a detailed statement of the factual background which it is useful to summarize. While the respondent did not dispute the factual accuracy of this material, Mr Herzfeld submitted that it was not relevant to the issue of statutory construction. Although on one level that argument can be accepted, the material is certainly helpful as background and may have a bearing on the choice the tribunal is required to make.
The applicant has three children and has been a registered home schooling parent since 1999. The reviewable decision relates to ER, her second child, who is adopted (these reasons will omit the word "adopted" from now on).
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[Not for publication] It was evident that meeting ER's needs in a traditional school would be extremely difficult, and it was decided that she should be home-schooled. The process for registering children and adolescents for home schooling includes the allocation of an authorized person to assess the application. Parents provide authorized persons with evidence of their planning for home schooling, which is assessed for compliance with the Act and board policy. A recommendation is then made to register, or not register, the child for home schooling
The authorized person viewed the application favourably, stating inter alia that: Mr and Mrs DMM have gone to great lengths to prepare the documentation submitted. This documentation outlined ER's background and progress so far. It includes samples of her work and verification of efforts made to meet ER's special needs. The detail provided in addressing each of BOS syllabus outcomes at Stage 1 indicates that both parents are carefully designing a home education program that will allow ER to progress at her pace. The thought that has gone into forward planning indicates a total commitment to home schooling. All is backed by an explanation of the DMMs' philosophy.
The maximum permissible period of registration, two years, was granted on 15 February 2005 and was renewed four times, the final period being truncated by three days because ER was to turn 17. In April 2015 the applicant applied to renew the registration with the request that it extend to senior secondary schooling (years 11 and 12). That application was refused on 3 June 2015 by the board's Director, School Registration and Accreditation Standards, on the ground that once ER turned 17, she was no longer required to be registered for home schooling, nor eligible to be so registered. An internal review affirmed that decision on 22 June 2015.
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Although ER is beyond the age at which education is compulsory, she has not completed her school education. She has begun the year 11 and 12 stage, but has not completed it. She wishes to undertake university study to be an occupational therapist so as to help other children as she was helped. That is thought to be a realistic option if she is given the time and support she needs. Attendance at school for years 11 and 12 is not an option for her as she would be likely to be overwhelmed by the stress and anxiety of the HSC program. Her general practitioner noted that [Not for publication] in the past when she was not coping or anxious and, along with the psychologist, said it would be beneficial for her to continue to be home schooled to complete years 11 and 12 "and as such to continue to be recognised as a student".
The psychologist continued: Education and relational continuity, consistency and stability are particularly important for children and young people with attachment and trauma vulnerabilities. Given this, while ER is 17 in chronological years she would benefit from ongoing educational support that meets her maturational and developmental needs. As such I am requesting that consideration be given to extending her registration for home schooling so that she can complete her Year 11 and 12 studies in the least stressful and most supported environment she can have access to currently. A continuation of her current educational plan is likely to result in a reduction of stress associated with change and will allow for further preparation and skills development to assist her to successfully make the transition to adult education settings in the future".
Turning 17, with the resulting change in educational status, has made ER particularly anxious and she has been regularly reminded that she is not a student as far as the government and others are concerned. Consequently she is unable to obtain a student travel concession card as she cannot produce proof of home schooling registration. She has had to give up her student Opal card and use an adult one. She is unable to access student discounts for a wide variety of services and opportunities such as Sydney Theatre Company performances and museum entry. She feels that she is in a no man's land. When someone asks what she does, she finds the question difficult to answer. This lack of recognition is placing unnecessary pressure on her to finish her schooling and go to university, as well as depriving her of support that is available to other students. It exacerbates her anxiety, adds to her already complex work of identity development and makes it more difficult for her to learn. Nevertheless, she has made progress and has managed to develop into an accomplished athlete, setting three Australian records and numerous New South Wales records [not for publication].

Respondent's submissions

The respondent filed written submissions in which inter alia it reviewed the relevant authorities on statutory construction, including Thiess v Collector of Customs (2014) 250 CLR 664, 671-672 and Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [69], [78]. Mr Herzfeld stressed that the authorities make it clear that the statutory purpose resides in the text and structure of the legislation, and it is therefore not for a court to construct its own idea of a desirable policy, impute it to the legislature and then characterize it as a statutory purpose.
The respondent accepted that, read literally, s 71 of the Education Act does not limit the entitlement of a parent to apply for registration of a child for home schooling to a child of compulsory school age. On a proper construction, however, that was the legal meaning of the section. For a parent who wishes to educate a child at home, the requirement for the child to be registered for home schooling arises only because of ss 22(1) and 23(1), but those provisions require home schooling registration only for a child of compulsory school age. Consequently, ss 22 and 23 require registration of the child for home schooling only until the age at which the child completes Year 10 (subject to certain irrelevant exceptions) or the age of 17 years, whichever first occurs. A parent wishing to educate a child at home after that need not register the child for home schooling.
The legislative history reveals a link between registration for home schooling and the compulsory school age. The predecessor to the Education Act, the Education and Public Instruction Act 1987, provided in s 6(1) that "the Minister may grant a certificate exempting a child from attendance at school as required by this Part, if the Minister is satisfied -(a) that the child receives appropriate regular and efficient instruction at home…". There was no registration requirement.
The above matters suggested that the purpose of the imposition of a requirement for registration was the more effective regulation of the provision of education to children during the period in which the State considers it to be essential (compulsory) that children receive education. It is consistent with that purpose for the entitlement for home schooling registration to be limited to children of compulsory school age. It would be alien to that purpose to focus on benefits said to flow from the child from being registered, as a result of choices made by other agencies. Those choices could have no bearing on the proper construction of the Education Act, which is directed to more closely regulating, and thus confining, the extent to which children whom the State deems must be in education are able to be educated at home.
That was not to equate home schooling registration with an exemption from attending school, as was the case under the predecessor legislation. Rather, it was to recognize that the purpose of provisions permitting registration for home schooling was spent once a child reached the end of compulsory school age. Section 71(1) was to be construed in accordance with that purpose.
While the Act does treat attendance at school and home schooling as equivalent in many respects, they are not treated equally in all respects. The HSC can be obtained only through attendance at school (s 95) as is also the case for a Record of School Achievement (s 94), which is a necessary precursor to the HSC. There can therefore be no a priori assumption that attendance at school and home schooling must be treated equally in all respects and therefore that home schooling registration must be available for the whole of the time at which school attendance is possible.
Indeed, entitlement for home schooling registration is on any view limited to "a child", meaning a person under the age of 18: (Minors (Property and Contracts) Act 1970, s 9). Thus it is not possible for adults to be registered for home schooling, but it is possible for them to enrol in government schools under s 34(7). Consequently, while there is no maximum age for schooling under the Education Act, there is a maximum age for home schooling registration, a matter that tells against any necessary equivalence between the entitlement to registration and the entitlement to enrol at school.
While s 71(1) could have referred to "a child of compulsory school age" rather than simply to "a child", the presumption that the use of different words indicates a different meaning is relatively weak: King v Jones (1972) 128 CLR 221, 266.
The applicant's submissions concerning the board's obligation to administer the Act to facilitate the best education outcomes for children and young people does not bear on the construction of the Act, and the board takes the view that no question arises as to the administration of the Act as the issue is simply a question of applying the Act as it is properly construed.
In oral submissions at the hearing, Mr Herzfeld reiterated those points, stressing that the tribunal was concerned only with the narrow issue of the construction of s 71. Project Blue Sky made it clear that a statute was to be construed as a whole and if that were done the legal meaning of a provision could depart from its literal meaning. The legislation's purpose could not be determined by any a priori assumption of equal treatment, nor could it be deduced from the subjective opinions expressed in Parliament. The need for registration arises only because of ss 22 and 23, and after the age of 17, it is not required. Once it was no longer required, there was no entitlement to it either. The legislative history clearly showed the link between the obligation and the right to registration. In any event registration conferred no advantages under the Act, and the benefits enumerated by the applicant arose outside it.
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.
Nor could it be assumed that the Act intended to treat home schooling equally with instruction at school. The two categories were not treated equally, as, for example, the HSC was not available for home-schooled children. At all events, on any view registration was available only for "a child", not for an adult. An adult could enrol in a government school pursuant to s 34(7), but there was no equivalent provision for home-schooled students. Federal legislation dealing with age discrimination and disability discrimination was not relevant because it could not affect the construction of a state Act. The fact that other bodies might require proof of registration could not affect the construction of the Education Act.
The respondent acknowledged that home-schooling registration for students over 17 would not harm or interfere with the administration of the Act, but said that it was simply alien to the purpose of the legislation as regards registration and would not further its purposes.

Consideration

The tribunal's review powers as regards the present application are set out in s 108 of the Education Act and apply to the exclusion of the powers conferred on the tribunal under s 63 of the Administrative Decisions Tribunal Act 1997 (ADT Act). In relation to the decision to recommend refusal of the application for home schooling registration, the tribunal may confirm the recommendation, set it aside or make a different recommendation to the minister concerning the subject-matter of the application: s 108(1)(b).
The tribunal's role is to conduct a merits review of the board's recommendation and decide what the "correct and preferable" recommendation or decision is, having regard to the material before it at the hearing: ADT Act, s 63(1) and (2). That is so notwithstanding that s 108 excludes the entirety of s 63 of the ADT Act. Section 108 sets out the orders that the tribunal may make on review of a decision made under the Act and, to that extent, replaces s 63(3). The exclusion of s 63 is not considered to have been intended to change the nature of the tribunal's role as set out in s 63(1) and (2): ANC High School Pty Ltd v Board of Studies [2012] NSWADT 125.
In proceedings for the merits review of an administrative decision, there is no onus of proof on either party: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354. Instead, the tribunal "stands in the shoes" of the decision-maker and is able to inform itself on any matter in such manner as it thinks fit: ADT Act, s 73(2). In the present case no oral evidence was adduced and the facts were not in dispute. The parties relied on documentary evidence which was also not in dispute, except that the respondent challenged the relevance of much of the applicant's material to the point of statutory interpretation in issue.
That point, of course, is whether the word "child" in s 71(1) means any child, that is, any person under 18, or whether it should be read as being confined to children who are subject to the compulsory schooling provisions in ss 22 and 23. At one point the applicant contended that the phrase "A parent of a child" was referring to a relationship, and not any particular age or status, but that point was not pursued. It could not be correct, as it would lead to absurd results, such as, hypothetically, a septuagenarian father seeking registration for his 40-year old son.
The respondent's position, to recapitulate, is that the obligation and entitlement to register for home schooling arises only because of ss 22 and 23. The legislative history shows that it originated in the 1987 Act provision for exemption from compulsory schooling for home-schooled children. That the current Act now requires registration, whereas the 1987 Act did not, does not remove the link between registration and compulsory schooling. Registration was introduced because it made possible a system of regulation that restricted the availability of home schooling to cases that were most appropriate for it. Registration was only for that purpose and its function was spent once the child turned 17. Focusing on possible external benefits would be alien to its purpose. The Act itself provides no benefit from registration.
There are several possible, and to an extent competing, approaches to the construction of s 71(1). The starting point for all statutory interpretation is usually taken to be the literal, or plain meaning, rule. That principle was clearly enunciated by Higgins J in Amalgamated Society of Engineers v Adelaide Steamship Co. Ltd (1920) 28 CLR 129, 161: The fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded according to the intent of the Parliament that made it; and that intention has to be found by an examination of the language used in the statute as a whole. The question is, what does the language mean; and when we find what the language means in its ordinary and natural sense, it is our duty to obey that meaning, even if we think the result to be inconvenient, impolitic or improbable.
As can be seen, the literal rule requires the court or tribunal to examine the language of the statute as a whole, but contemporary practice places greater emphasis on construction of the enactment as a whole, together with contextual matters such as legislative history and extrinsic materials. In Thiess v Collector of Customs (2014) 250 CLR 664, 671 - 672, [22] - [23] the High Court has said (omitting references): Statutory construction involves attribution of meaning to statutory text. As recently reiterated: This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text. So must the task of statutory construction and. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Objective discernment of statutory purpose is integral to contextual construction. The requirement of s 15AA of the Acts Interpretation Act 1901 (Cth) that "the interpretation that would best achieve the purpose or object of [an] Act (whether or not that purpose or object is expressly stated… is to be preferred to each other interpretation" is in that respect a particular statutory reflection of a general systemic principle. For: "it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning".
In a much-cited earlier passage, the Court had said in Project Blue Sky that: The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole"….[T]he process of construction must always begin by examining the context of the provision that is being construed. Ordinarily… the legal meaning… will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.
Nevertheless, "it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose": Australian Education Union v Department of Education and Children's Services (2012) 248 CLR 1, 14 [28].
The contemporary approach is given statutory force in New South Wales by ss 33 and 34 of the Interpretation Act 1987. Section 33 states that a construction that would promote the purpose or object underlying an Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to construction that would not promote that purpose or object, while s 34 permits the use of extrinsic materials to confirm that the meaning of the provision is the ordinary meaning conveyed by the text, or to determine the meaning of the provision if it is ambiguous or obscure or if the ordinary meaning conveyed by the text leads to a result that is manifestly absurd or unreasonable.
It is not disputed that a literal interpretation of s 71(1) favours the applicant's case, as she is a "child" in the legal sense until she turns 18. The legislative history of home schooling registration does show that the genesis of the registration system was in the process of exemption from compulsory school attendance. The respondent argues 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. 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.
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".
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 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 (op. cit. supra 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 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 expert evidence reinforces that view. The letter dated 14 December 2015 from ER's treating physician, Dr Stuart Anderson (exhibit A2, tab 14), concludes that "It would be inappropriate for her to attend a normal school for Years 11 and 12 but it would be beneficial for her to continue to be home-schooled to complete those years and as such to continue to be recognised as a student" (my emphasis). Her psychologist, Ms Gail Johnston, in her letter of 14 December 2015 (exhibit A2, tab 15), notes that ER "has discussed considerable worries and anxiety about changes to her educational status and concern that she will not be able to manage expectations of university. Educational and relational continuity, consistency and stability are particularly important for children and young people with attachment and trauma vulnerabilities. Given this, whilst [ER] is 17 in chronological years, she would benefit from ongoing educational support that meets her maturational and developmental needs. As such I am requesting that consideration be given to extending her registration for home schooling so that she can complete her Year 11 and 12 studies in the least stressful and most supported environment she can have access to currently. A continuation of her current educational plan is likely to result in a reduction in stress associated with change…." (my emphasis).
Giving the word "child" in s 71(1) its natural meaning is thus more likely to advance the Act's purposes than the narrower interpretation proposed by the respondent. The board very properly concedes that the administration of the Act would in no way be hampered or prejudiced by permitting ER to register for home schooling. There is no evidence that the education of any other child would be prejudiced in any way. There are only 3343 New South Wales students in home schooling at present, as against over 783,000 in the state's public schools alone. As registration could in any event only be valid until the student turns 18, there is unlikely to be a flood of applications by 17-year olds seeking registered status. Nevertheless, the evidence suggests that even allowing ER to be registered for part of this year would have some psychological and educational benefit for her, and perhaps for others in her position. I recommend that ER be granted home schooling registration.

Order

The tribunal recommends, instead of the Board of Studies' recommendation to the Minister of Education that DMM not be granted home schooling student registration for ER: That DMM be granted home schooling registration for ER.

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

Paragraphs : 13, 14, 18, 21 details are not for publication 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: 03 March 2016

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