Eagle Arts and Vocational College Incorporated v NSW Education Standards Authority

NCAT Administrative and Equal Opportunity|2018-10-09|Before: Dr J

REASONS FOR DECISION

Eagle Arts Vocational College ("Eagle Arts") was registered as a non-government school for Years 9 to 12. The NSW Education Standards Authority ("the Authority") recommended to the Minister for Education ("Minister") that the school's registration for Years 9 to 11 be cancelled and that its registration for Year 12 not be renewed.
Eagle Arts sought review of those decisions.
Eagle Arts was, at the time of the hearing, not complying with a large number of registration requirements. This jeopardised the safety and education of its students. The school could not deliver the curriculum adequately in the time it allowed for this (seven and a half hours per week at one campus). The school engaged an Acting Principal who had not finished her teaching degree, was not accredited as a teacher and did not have a working with children check clearance. One of its senior teachers, a campus coordinator, was not an accredited teacher and the school's principal considered that she was still entitled to teach. These matters are illustrative of the school's systemic non-compliance with the registration requirements.
I rejected Eagle Arts' position that the registration requirements should be applied differently in relation to it, because it has a high proportion of indigenous students, many of whom are "school refusers" and who suffer from psycho-social disabilities.
I decided to confirm the recommendations made by the Authority to the Minister.

Relevant law

Section 47(1) of the Education Act provides for the "requirements for the registration of a non-government school," setting out a list of such requirements.
Section 54A(1) of the Education Act relevantly provides that the proprietor of a non-government school may apply to the Minister for the renewal of the registration of the school. Section 54A(3) provides: "The application must include information demonstrating: (a) whether or not the school continues to satisfy the requirements for registration under section 47, and (b) whether or not since the school's registration was granted or last renewed, the school has complied with the terms and conditions of such registration."
Subsections 55(1) to (3) of the Education Act, which deal with the renewal of registration as a non-government school, provide: "(1) Within a reasonable time before the registration of a non-government school is to expire, the Authority is to make a written recommendation to the Minister as to whether or not the registration should be renewed. (2) Before making a recommendation, the Authority, if it is not satisfied that the requirements for, or the conditions of, registration are being complied with at the school, may give a written notice under subsection (3) to the proprietor or principal of the school or, in the case of a school that is a member of a system of non-government schools, the approved authority for the system. (3) The notice: (a) is to state that renewal of registration of the school will not be recommended until the matters specified in the notice have been addressed, and (b) may specify the time within which any such matters should be addressed."
Section 56(1) of the Education Act, which provides for renewal of registration by the Minister, provides: "(1) The Minister is to renew the registration of a non-government school if the Minister, having considered the recommendation of the Authority and any decision of the Tribunal administratively reviewing the Authority's recommendation, is satisfied that the requirements for, and the conditions of, registration are being complied with at the school."
Subsections 59(1) and (2) of the Education Act, which provide for cancellation of the registration of a non-government school, relevantly provide: "59 Cancellation of registration (1) The Minister may, on the recommendation of the Authority, cancel the registration of a non-government school by written notice given to the proprietor or principal of the school …. (2) The Minister may not do so unless the Minister is satisfied that the requirements for, or the conditions of, registration are not being complied with at the non-government school."
The Authority is empowered to make rules under s 25 of the Education Standards Authority Act 2013 (NSW). These may, amongst other things, "set out guidelines with respect to the requirements for registration, approval and accreditation under the education and teaching legislation" (Education Standards Authority Act, s 25(2)(a)). The rules do not have effect unless approved by the Minister for Education (Education Standards Authority Act, s 25(3)).
The Manual, made by the Authority, contains some material which is best described as information about the provisions of the Education Act and the Authority's role in the registration process. It also contains material which could be described as "rules" made pursuant to the power in s 25 of the Education Standards Authority Act. Anne Keenan, the Director, School Registration and Accreditation, at the Authority, gave unchallenged evidence that the Manual has been approved by the Minister as rules of the Authority under the Education Standards Authority Act. I accept that evidence.
An application may be made to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (NSW) of a recommendation of the Authority that registration of a non-government school not be renewed or that it be cancelled (Education Act, s 107(1)(b) and (c)). The Tribunal may, relevantly, confirm the recommendation or make a different recommendation to the Minister concerning the subject-matter of the application (Education Act, s 108(1)(a) and (b)). This order-making power applies to the exclusion of s 63 of the Administrative Decisions Review Act (Education Act, s 108(2)). Nevertheless, the Tribunal's role remains to make the correct and/or preferable decision at the time of the hearing (ANC High School Pty Ltd v The Board of Studies [2012] NSWADT 125 at [14]; Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 26 ALD 60 at LAR 589; Shi v Migration Agents Registration Authority (2008) 235 CLR 286).

Are the "registration requirements" mandatory?

The November 2017 Report and internal review report relied upon Eagle Arts' failure to comply with the requirements for registration in relation to matters in s 47(1) of the Education Act and the requirements in the Manual.
Eagle Arts submitted that the "requirements" in s 47(1) were directory and not mandatory. Mr McQuillen, for Eagle Arts, said that s 47 has to be read in light of the objects of the Education Act in s 6. This includes the object of providing "an education for Aboriginal children that has regard to their special needs" (Education Act, s 6(1)(f)).
In oral submissions, Mr McQuillen said that, although s 47(1) uses the word "requirements," this does not mean that a school has to do everything listed in that provision (although his commitment to this position appeared to fluctuate). Mr McQuillen also submitted that s 47(1) identified "subjective" matters and that the content of each of the paragraphs of s 47(1) varied according to the situation. The requirements of s 47(1) would thus be different for students of Eagle Arts, including Aboriginal students and students with disabilities, being schooled in a remote area. Mr McQuillen submitted that, in terms of determining what the requirements are for registration, the Tribunal needs to look at the whole of the circumstances pertaining to Eagle Arts, in particular that it is a special assistance school and that its students have special needs.
Even if I had accepted Mr McQuillen's construction of s 47(1), Eagle Arts did not provide evidence of the number of its students who were indigenous or who had disabilities, or the special needs of its students, or that it was a special assistance school. Two of its three campuses are not in remote areas. Thus, it would have had difficulty establishing that s 47(1) should be applied differently to it, even if I had accepted that s 47(1) may be applied differently depending upon the location of the school or the composition of its student population. I do not accept that.
I am not persuaded that the objects provision, s 6 of the Education Act, alters the meaning of s 47(1) in the way suggested by Eagle Arts. Section 6(1) provides that it is Parliament's intention that certain persons, including those concerned in administering the Act, are to have regard to fifteen objects, "as far as is practicable or appropriate." Whilst the objects clause may be relevant to construing other provisions of the Education Act (see Russo v Aiello (2003) 215 CLR 643, Gleeson CJ at 645), it cannot control clear statutory language (see Lynn v State of New South Wales [2016] NSWCA 57, Beazley P at [54]). Further, given that the Education Act has a number of different objects, striking a balance between competing interests, the extent to which any particular object affects the construction of other provisions is limited (see Construction Forestry Mining & Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619 at [40] and New South Wales v Donovan [2015] NSWCA 280, Beazley P and Macfarlan and Leeming JJA at [80]-[82]). Finally, as Ms Ronalds SC pointed out, for the Authority, s 6(2) of the Education Act provides that s 6 does not limit any other provision of the Act.
As already indicated, s 47(1) of the Education Act sets out "the requirements for the registration of a non-government school." The ordinary meaning of the word "requirement" is "that which is required; a thing demanded or obligatory" (Macquarie Dictionary). Section 47(1), of itself, does not impose an obligation to comply with those requirements. However, s 47(1), when read with other provisions, evinces a legislative intention that a school must comply with the requirements.
There are various provisions in the Education Act indicating that the "requirements" for registration must be complied with by a school. The Minister is required to register an applicant for registration as a non-government school if satisfied that "the requirements for registration will be complied with at the school" (Education Act, s 51(2)). When a proprietor of a non-government school applies for renewal of registration, the application must include information demonstrating whether or not the school continues to satisfy the requirements for registration under s 47 (Education Act, s 54A(3)(a)). If the Authority is not satisfied that the requirements for registration are being complied with at a school, it may issue the school with a notice stating that renewal of registration will not be recommended until the matters specified in the notice have been addressed (Education Act, s 55(2), (3)(a)). The Minister is to renew the registration of a non-government school if satisfied that the requirements for, and the conditions of, registration are being complied with at the school (Education Act, s 56(1)). The Minister may only cancel the registration of a non-government school if satisfied that the requirements for, or the conditions of, registration are not being complied with at the school (Education Act, s 59(2)).
The word "requirements" in s 47(1) of the Education Act and the repeated use of the language of compliance indicates that a school must comply with the matters set out in s 47(1). With some requirements, there will be little room for dispute as to whether the school has complied. For example, under s 47(1)(a), the school's proposed proprietor must be a corporation or other form of legal entity approved by the Minister. Other requirements require the formation of a judgment or opinion. For example, the requirement that "educational facilities are adequate for the courses of study provided at the school" (s 47(1)(e)) requires a judgment to be formed as to the adequacy of educational facilities. This does not mean that the requirements are "subjective" or that the standard required by each of them varies according to the circumstances of a particular school. An assessment of compliance with each requirement must be undertaken having regard to "matters relating to the quality of student learning" (s 47(2)).
It is not entirely clear how Eagle Arts proposed that each "requirement" be applied to it. However, if the submission made on behalf of Eagle Arts was to the effect that, because it had a high proportion of indigenous students who did not attend school regularly, the requirement for maintaining an attendance register under s 47(1)(g)(iv) was somehow diminished or altered in its application to Eagle Arts, then I reject that submission. I do not accept that the requirements in s 47(1) have a variable operation according to the cohort of students and the location of the school. To accept this proposition would mean that the legislature had sanctioned a lower standard of education for indigenous students and those living in rural New South Wales. That proposition must be rejected.
Whilst I have found that a non-government school is required to comply with the registration requirements, the Authority and the Tribunal have a discretion not to recommend cancellation or non-renewal of a school's registration, even if the school has failed to comply with a requirement of registration (see ANC High School Pty Ltd v The Board of Studies [2012] NSWADT 125 at [21] and [86]).

Did Eagle Arts comply with the registration requirements?

The Authority made findings in the November 2017 Report and in the internal review report of March 2018 that Eagle Arts was non-compliant with the registration requirements for teaching staff, curriculum, premises, child protection, student welfare, policies and procedures for proper governance and annual reporting.
Eagle Arts had ample opportunity to provide evidence to the Tribunal of steps it had taken to address the findings of non-compliance. It provided little evidence meeting this description. Its approach, rather, was to argue that it had been found to be compliant at an inspection earlier in 2017, so that the later findings must be wrong or unfair; and that the registration requirements should be applied differently to it due to its student cohort and having regard to objects such as "provision of an education for Aboriginal children that has regard to their special needs" (Education Act, s 6(1)(f)).
The Authority's witnesses, Anne Keenan and Sandra McKee, were cross examined by counsel for Eagle Arts. However, Eagle Arts' counsel generally did not challenge their findings about Eagle Arts' non-compliance with the registration requirements, on matters of substance.
I deal with some of the more important aspects of Eagle Arts' alleged non-compliance with the registration requirements below. When assessing whether Eagle Arts has complied with those requirements, I have had regard to matters relating to the quality of student learning (Education Act, s 47(2)) where there is evidence of this, including: 1. the standard of teaching of courses of study provided at the school, 2. student engagement in learning at the school, 3. any matters identified in a risk assessment conducted by the Authority in relation to the school.

Standard of teaching

There was limited evidence of the standard of teaching of courses of study provided at the school. The school's principal, Ms Gabrielle McIntosh, gave evidence that Eagle Arts' students had low literacy and numeracy levels, but did little to demonstrate how its teachers addressed this.
Ms McIntosh said that it was Eagle Arts' position that the literacy and numeracy standards of its students were insufficient to enable a school to have a teaching program as described in the Manual. Eagle Arts did not provide any detailed teaching programs to the Tribunal. As Ms Keenan, the Authority's Director, School Registration and Accreditation, explained to the Tribunal, teaching programs provide detail of how teachers will provide opportunities for learning to achieve outcomes, including the strategies they will use to address lower numeracy and literacy levels. Without such programs, it is difficult to see how the outcomes are achieved. I accept Ms Keenan's opinion that Ms McIntosh's comment is suggestive that the school may not have a plan to address its students' needs. The lack of any detailed teaching programs makes it very difficult to form any view about the content and standard of teaching of courses of study provided at the school. However, the statement by the principal that Eagle Arts could not have a teaching program, as described in the Manual, due to its students' low literacy and numeracy levels, is not indicative of a high standard of teaching of courses of study at Eagle Arts.
It is unclear what Eagle Arts' assessment strategies were and how it applied them. Ms Keenan gave unchallenged evidence, which I accept, that for a school which has a large proportion of students with lower levels of literacy and numeracy or other learning issues, a high degree of focus on assessment is necessary. This gives the school a sense of the entry level of achievement in those areas and the key learning areas. As Ms Keenan explained, such a school would typically have a process for routinely assessing students' progress once they had entered the school. Eagle Arts' curriculum documentation listed some generic-type strategies (such as observations of students, peer assessment and self-assessment) but did not explain how generic strategies were applied in the context of the school curriculum. The lack of documentary material demonstrating particular assessment strategies for the school's students makes it difficult to assess the standard of teaching. However, one would expect that a highly accomplished teacher would have a detailed assessment program so as to diagnose students' learning needs and their progress or lack thereof.
Teachers were teaching a broad range of subjects, raising the question of their expertise across all of the subjects which they taught. For example, the timetable for Kincumber showed Ms McIntosh teaching Maths, English and Drama for Years 11 and 12 and PDHPE, HSIE and Science for Years 9 to 12. It is unlikely that a single teacher would have the necessary or desirable expertise to teach all of these subjects at higher levels.
There was little to indicate that the standard of teaching of the courses of study provided at the school was high.

Student engagement in learning

There was very little evidence of student engagement in learning at the school. Such evidence as there was suggested that attendance was low. Ms O'Brien gave evidence that the students were not engaging with the first timetable used at the Broken Hill campus in 2018 so they tried a different one which was less "content heavy." She said that when the students did not engage, they did not turn up. Ms O'Brien accepted, in cross examination, that it was a teacher's job to make the content of the curriculum relevant and interesting to the students. The alternative Broken Hill timetable which Eagle Arts adopted had even fewer hours in which the curriculum was taught than the original timetable. There was no evidence as to whether the students were more engaged with the second timetable.
The evidence of the principal, Ms McIntosh, was that Eagle Arts was good at getting kids who refuse to go to school to show up and do something, to at least engage with the teachers and engage in some kind of learning. However, there was no independent evidence of this. The absence of any students at any of the inspections would tend to suggest the opposite. Further, when asked about a particular class on the timetable, Ms McIntosh indicated that Stages 5 and 6 had been "collapsed" and that that class was not being taught. This was because, although Eagle Arts had thought it was going to have a reasonable number of students, students had left and, in Ms McIntosh's words, "people find it hard to concentrate as the year gets on."

Matters identified in Authority's risk assessments

The November 2017 Report is a risk assessment, as is the internal review report. Matters identified in those risk assessments are addressed within the discussion of specific registration requirements below.

Teaching staff

One of the registration requirements is that "teaching staff for the school have the necessary experience and qualifications (having regard to accreditation under the Teacher Accreditation Act 2004 but without limiting such other matters as may be relevant)" (Education Act, s 47(1)(d)).
The November 2017 Report and the internal review report found that Eagle Arts was not complying with this registration requirement. In the internal review report, Ms McKee found that Eagle Arts had not provided evidence that all teaching staff had the necessary qualifications and that it had not provided evidence that it had a teaching staff with the holistic capacity to deliver the curriculum for which the school is registered (amongst other matters).
It emerged during the course of the evidence of Ms Julie O'Brien, the campus coordinator of Eagle Arts at Broken Hill, that she had been teaching students since the beginning of the school year, notwithstanding that she is not an accredited teacher under the Teacher Accreditation Act 2004. She appeared not to realize that she was not accredited or not permitted to teach. Teaching without accreditation is a contravention of s 28(1) of that Act. Further, by s 28(2) of the Teacher Accreditation Act, it is an offence to employ a person to teach in a school unless that person is accredited.
Ms McIntosh accepted that, as the responsible person for Eagle Arts, it was her responsibility to ensure that all teachers were accredited. Ms McIntosh disagreed with the (correct) proposition, put to her in cross examination, that as of 1 January 2018 a teacher was required to be accredited in order to teach in New South Wales. When asked whether she was familiar with the Teacher Accreditation Act she responded, "Uncertain." In response to a question about whether Ms O'Brien was an accredited teacher, Ms McIntosh responded that she was uncertain. Ms McIntosh then said, when asked to agree that Ms O'Brien teaching for nine months when not accredited was something which should not have occurred, that this was incorrect. She also disagreed with the proposition that, not being accredited, Ms O'Brien should not be permitted to teach in the future.
Ms McIntosh's lack of understanding of the requirements of accreditation, and her preparedness to allow an unaccredited teacher to continue to teach, are of serious concern.
Ms McIntosh's evidence was that, whilst she was on leave in February 2018, a person called Dianne Knapton was the acting principal. Ms McIntosh accepted that Ms Knapton had not, at that time, completed her studies as a teacher. She was not an accredited teacher and she did not have a working with children check clearance. It is extraordinary that the school would hold out a person without teaching qualifications and without a working with children check clearance as being its acting principal.
The circumstances that Eagle Arts employed an unaccredited teacher and placed her in the position of campus coordinator, and that it made a person without teaching qualifications or a working with children check clearance its acting principal, indicate serious non-compliance with s 47(1)(d). There are, however, more issues concerning the necessary experience and qualifications of Eagle Arts' teachers.
In re-examination, Ms McIntosh said that her understanding had been that she, herself, was accredited as at 26 January 2018. She then referred to a conversation she had had with an officer of the accreditation authority who told her (presumably in January 2018) that she would be sent information so that she could pay the fee and become accredited "very soon but in reality it didn't happen for me till April 2018". If this means, as it appears to mean, that Ms McIntosh was not accredited until April 2018, this is also of great concern, as she was teaching prior to that.
It became clear during the evidence of Ms O'Brien and Ms McIntosh that the school's 2018 timetables provided to the Authority and to the Tribunal were incorrect. The school was in fact using different timetables. This is significant in that it provided misleading information about the identity of teachers teaching its courses. It showed that certain teachers were teaching who had in fact left the school. A teacher who had resigned had previously been convicted of stealing over $46,000 from another school at which Ms McIntosh was teaching. Ms McIntosh had not informed the Authority of the teacher's resignation. Ms McIntosh employed her at Eagle Arts and disagreed with the proposition, put to her in cross examination, that this teacher was an inappropriate person to employ.
The many inconsistencies in the documents provided to the Authority and to the Tribunal about the school's teaching staff, and their unreliability as revealed by the evidence, meant that the Tribunal could not be satisfied that the teachers who were in fact teaching at the school had the necessary experience and qualifications to do so. This is particularly so given that the school clearly had insufficient policies and practices in place to identify that its campus coordinator was not accredited, and that its responsible person considered that it was appropriate for her to continue teaching if unaccredited.
For these reasons, I find that Eagle Arts did not comply with the registration requirement set out in s 47(1)(d) of the Education Act.

Curriculum - Years 7 to 10

One of the registration requirements is compliance with the requirements set out in Part 3 of the Education Act relating to the minimum curriculum for a school providing any such secondary education for Years 7 to 10 (Education Act, s 47(1)(j)(ii)). Part 3 of the Education Act sets out, in s 10, the minimum requirements for Years 7 to 10 (other than for candidates for the Record of School Achievement, for which Eagle Arts is not registered). The minimum requirements include that courses of study in a key learning area are to be based on, and taught in accordance with, a syllabus developed or endorsed by the Authority and approved by the Minister (s 10(1)(e)).
The Authority found that Eagle Arts did not comply with this requirement. One of the findings of the internal review was that the school had not demonstrated that sufficient time was being provided to deliver the Authority's curriculum.
The school days at the Broken Hill campus were Monday to Thursday. The students were not required to attend school on Fridays. Ms O'Brien said that the students could not cope with the content of the timetable provided to the Authority in February 2018, so a different timetable was adopted. Until this evidence was given orally, neither the Authority nor the Tribunal was aware that the earlier timetable was not in use, notwithstanding that Eagle Arts' evidence was filed late, one or two business days before the hearing. Ms O'Brien provided the Tribunal with the updated timetable during the hearing.
The revised timetable for Broken Hill showed that on Monday to Thursday from 9.30am to 10am the students undertook "Early Activities." Ms O'Brien agreed, and I find, that "Early Activities" are not part of the Authority's curriculum. According to the timetable, the students studied English for half an hour a day on three days, and Maths for half an hour a day on four days. They also studies science, geography and visual arts for half an hour a day each on two days. Other subjects included careers for half an hour on Wednesday. On Mondays, the students finished at 12.30pm. On Tuesdays to Thursdays, they had 1 hour in the afternoon, consisting of "STEAM Groups" (referring to Science, Technology Engineering Arts and Maths), "Guitars / Go Karts" or "PCYC" (Police Citizens Youth Club).
Ms O'Brien agreed, in cross examination, that Early Activities, Careers, STEAM Groups, Guitars/Go Karts, and PCYC are not part of the curriculum. She also agreed that the students only have 7 and a half hours per week of apparent teaching. Ms O'Brien conceded that schools usually teach 25 hours per week and that the general approach to achieve the curriculum is 100 hours a year per subject for students in Years 9 and 10 and 120 hours per week per subject in Year 11. Ms O'Brien agreed that it was not possible to cover the Authority's curriculum for Stages 5 and 6 in those short hours.
Ms McIntosh was also cross examined about the revised Broken Hill timetable. She did not accept that the curriculum does not cover the matters taught on Tuesday to Thursday afternoons, being STEAM Groups, Guitars/Go Karts, and PCYC. She said that PCYC was a PDHPE type curriculum and was English-based, in that students would come back and write something about it. Ms McIntosh indicated that "Guitars" were part of Creative Arts and that Go Karts were engineering-science based and also involved English (writing up material when the students came back to school).
I prefer Ms O'Brien's evidence about the curriculum to that given by Ms McIntosh. Ms McIntosh presented, in general, as an evasive and combative witness. There is nothing in the documentary material to support her claim that English is taught through PCYC and Go Karts. Ms Keenan's evidence was that, while it was acceptable to link an activity such as learning to drive with one of the outcomes of one of the syllabuses, the curriculum provided by Eagle Arts to the Authority did not reflect this type of thinking. It is doubtful that a timetable providing for "Guitars" alternately with Go Karts could satisfy the curriculum requirements for Creative Arts, where there is no other evidence of music being taught. Further, the idea that students would come back to the school and write up their experiences within the hour which had been allocated for the activity, appears fanciful, particularly in light of the evidence of Ms McIntosh and Ms O'Brien about their students' tendency for school refusal. Ms O'Brien was directly involved in activities at the Broken Hill campus whereas Ms McIntosh said she had not seen the revised timetable before. For all of these reasons, I consider that Ms O'Brien's evidence about the timetable at Broken Hill and its practical implementation is more reliable than that of Ms McIntosh.
I find that Eagle Arts only provided 7.5 hours per week of instruction in the Authority's curriculum at Broken Hill.
Ms Keenan's oral evidence was that teaching from 9.30am to 2.30pm four days a week raised the question of whether Eagle Arts was giving enough time to the syllabuses which need to be delivered. She said that the syllabus was designed around the delivery of 100 hours per year per subject for Years 7 to 10 and 120 hours per year from Years 11 and 12. She also said that, whilst there was no mandatory amount of hours, one would expect a school to teach a number of hours which was roughly equivalent to the hours of study the syllabus was designed to be delivered in.
Ms McKee's internal review report stated that the Stage 5 syllabuses are designed to be delivered over 100 hours for each year of the two-year stage, and that the Stage 6 syllabuses are designed to be delivered over 120 hours per year. Her opinion was that, when totalled for a year, the school's timetable provided considerable less time than the time required to teach the Authority's syllabuses. In her view, the scheduled time was insufficient to deliver the curriculum required by the Education Act.
The evidence of Ms Keenan and Ms McKee on these matters was not seriously challenged and I accept it.
The timetables provided by Eagle Arts for Bligh Park and Kincumber indicated that the curriculum was being taught for about 3.5 hours per day, for three days per week and 2.5 hours per day on one day per week. Like Broken Hill, lessons were only taught on four days per week. When questioned about the timetable at Kincumber, Ms McIntosh said that the hour allocated to English or Drama for Stage 6 on Friday afternoon was not happening and instead the children were only doing "Interest Groups" which included bush walking and looking at fossils at Avoca.
I find that the amount of time allocated to teach the curriculum at each of Eagle Arts' campuses was insufficient to teach courses of study in each key learning area in accordance with the Authority's syllabuses.
Accordingly, Eagle Arts has not complied with the registration requirement in s 47(1)(j)(ii) of the Education Act.
Other issues in relation to the curriculum were identified in the internal review report, including that the school did not provide teaching programs for each unit of work in relation to the outcomes of Authority syllabuses for each year of schooling at the school. At two campuses, documentation relating to teaching programs did not provide for all mandatory key learning areas. However, in light of my finding above, I do not need to deal with this aspect of the evidence.

Curriculum - Years 11 and 12

The Authority also relied upon the registration requirement in s 47(1)(j)(iii) of the Education Act, being compliance with the requirements set out in Part 3 of that Act relating to, "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." At the time of the hearing, Eagle Arts provided secondary education for children during Year 11 (and, contrary to the scope of its registration, Year 12). It did not offer and was not accredited for the purpose of presenting candidates for the Higher School Certificate (see Education Act, s 85).
Section 12 of the Education Act, in Part 3, deals with secondary education for children in Years 11 and 12. This provides that the curriculum during Year 11 and Year 12 for students who are candidates for the Higher School Certificate must meet certain requirements. It is unclear how Part 3 applies in respect of students who are not candidates for the Higher School Certificate. It is also unclear to me how s 47(1)(j) applies to a school providing secondary education for children during Year 11 and Year 12 which is not accredited for the Higher School Certificate. No submissions were made on this issue.
In the absence of submissions explaining how s 47(1)(j)(iii) applied to Eagle Arts, I am not satisfied that Eagle Arts failed to comply with this registration requirement.

Safe and supportive environment

One of the registration requirements is that a safe and supportive environment is provided for students (Education Act, s 47(1)(g)). This is to be provided by means that include, relevantly, persons who are employed at the school being employed in accordance with Part 2 of the Child Protection (Working with Children) Act 2012 and maintaining a student enrolment and attendance register (Education Act, s 47(1)(g)(ii) and (iii)).

Working with children check clearances

The Manual provides that a registered non-government school must have in place and implement policies and procedures to ensure that all persons engaged in child-related work at the school have a working with children check clearance and ensure that evidence of such clearances is maintained for all persons in child-related work at the school (cl 3.6.1). Under the Child Protection (Working with Children) Act, it is an offence for an employer to commence employing, or to continue to employ, a worker in child-related work unless the employer has obtained and verified the worker's relevant details and made a record of those relevant details, including the clearance number and expiry date (s 9A(1) and (2)).
Ms McIntosh agreed in cross examination that at least one of the casual teachers teaching at Eagle Arts, Dianne Knapton, did not have a working with children check clearance. It is an offence to employ a person in child-related work if the employer knows or has reasonable cause to believe that the worker does not hold a working with children check clearance and does not have a current application for a clearance (Child Protection (Working with Children) Act, s 9(1)).
The tables which Eagle Arts provided to the Authority and the Tribunal setting out details about its casual teaching staff have many blanks under the heading "WWCC Number and Expiry Date". Five persons identified as being causal teachers at Bligh Park, two persons identified as being casual teachers at Broken Hill and two persons identified as being casual teachers at Kincumber did not have, recorded against their name, a working with children check number or expiry date. Irrespective of whether these people in fact had working with children check clearances (and it was conceded that at least one of them did not), this is indicative of a defective system and of non-compliance with the Manual and Eagle Arts' legislative obligations. It strongly suggests that Eagle Arts employs casual teachers without having conducted the necessary checks, or without maintaining the necessary records, for the purposes of the Child Protection (Working with Children) Act.
Ms McIntosh provided Ms McKee, an inspector of the Authority, with a working with children check table on 28 February 2018 (listing all of Eagle Arts' employees, their working with children check numbers, verification date and expiry date) and provided her with a revised table on 1 March 2018. Another version of the table was provided on 9 March 2018. These tables are in evidence. As Ms McKee observed in her evidence, there are significant inconsistencies between the documents and between the teaching timetables and teaching staff list Eagle Arts also provided. For example, certain teachers who were on Eagle Arts' casual teachers list do not appear on its teachers list for 2018 but appear on revised timetables for 2018. Next to the name of one of the casual teachers, under the heading "Teacher Registration," it is stated "Not given yet" and the name of this teacher does not appear on the working with children check tables provided. Different working with children check numbers are provided for the same person on different versions of the working with children check table. One of the employees was recorded as having an expired work with children check clearance.
The various versions of working with children check documents provided by Eagle Arts to the Authority and their inconsistencies with other school records indicate that the school did not have in place a sufficiently rigorous process of checking and recording the working with children check status of its employees. As a result of a deficient process (and probably also because of the approach to paperwork adopted by Ms McIntosh), a teacher without a working with children check clearance was permitted to teach in the school.
I am not satisfied that all persons engaged by Eagle Arts as volunteers, and some paid non-teachers, had the requisite working with children checks (see Child Protection (Working with Children) Act, s 9(1) and definition of "employer" in s 5). Ms McIntosh referred in her statement to "mentors, aides, elders" having an involvement in the classroom. She stated that it was "important to have Indigenous mentors in the room for every class to ensure learning about Indigenous culture is relevant to today, current debates and geographical area." Further, she said that indigenous mentors "guide the teaching of history." There was no evidence, however, of the school verifying that these mentors, aides and elders had working with children check clearances. Similarly, Ms McIntosh said that while a named teacher was the registered teacher for Visual Arts, she did not in fact teach. Rather, she supervised visual artists who came in (on a paid basis). There was no documentary evidence to indicate that the school verified those artists' working with children check clearances.

Enrolment and attendance register

The principal of a 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 (Education Act, s 24(1)). It is an offence to fail to comply with this obligation without reasonable excuse (Education Act, s 24(5)). The Manual requires a registered non-government school to have in place and implement policies and procedures in relation to maintaining a student enrolment and attendance register and in relation to student attendance, with specific reference to processes for monitoring attendance data and intervention strategies to improve unsatisfactory attendance (cl 3.6.2).
Eagle Arts provided the Authority with conflicting information about its enrolment. On 9 February 2018, it advised that it had an enrolment of 62 students. On 28 February 2018, it advised that, as of 8 February 2018, its enrolment was 71 students, with 20 students at Bligh Park, 14 students at Kincumber and 37 students at Broken Hill. On 28 February 2018, Eagle Arts provided a copy of its register of enrolment, showing 86 enrolled students, with 22 at Bligh Park, 16 at Kincumber and 48 at Broken Hill.
The internal review report found that the enrolment register's "destination" field (indicating where the child went after his or her enrolment at Eagle Arts ended) was frequently left blank or completed with the word "unknown," and many records were incomplete. It found that the school had not demonstrated that it was maintaining registers of attendance or enrolment. Having examined the enrolment register, I agree with the Authority that it was deficient for the reasons given by the Authority. I also consider that the inconsistencies in the information Eagle Arts provided to the Authority about enrolment indicate that it was not maintaining the enrolment register in a methodical and reliable way.
Eagle Arts did not provide any attendance records to the Authority or to the Tribunal. It provided two different attendance policies. Ms McIntosh could not explain which one applied, saying that they both operate. The policy explained that students were "ticked or crossed to show attendance." The policy stated that the campus coordinator was responsible for maintaining the roll, but there was no evidence as to the identity of the campus coordinators. In cross examination, Ms McIntosh said that she was the principal so that implied she was the coordinator as they did not really have a coordinator.
The internal review noted that it had been identified that, at the Broken Hill campus, attendance records were recorded inconsistently from term to term and that no evidence was provided of implementing strategies to improve unsatisfactory attendance. Further, there were no records to support explanations of student absences in the four student files reviewed. I accept this evidence.
I am not satisfied that the school is complying with the obligation to maintain a student enrolment and attendance register. Eagle Arts had multiple opportunities to provide an attendance register to the Authority and to the Tribunal, and failed to do so. The enrolment register it provided was deficient in the ways described above.
The fact that no students were present at any of the three campuses when they were inspected in October 2017 indicates that the school's intervention strategies to improve unsatisfactory attendance were not working at that time. There is no evidence to suggest the strategies have been improved. On the evidence of Ms O'Brien and Ms McIntosh, attendance has decreased over the course of the year and classes have had to be adapted to deal with this.
As Ms Keenan told the Tribunal, tracking students' attendance at a school is important because, if they are not present, they could be at risk. A school may inform the Department of Education if a child is not attending school and has a duty to inform the Secretary of the Department if requested to do so (Education Act, s 22A). A particular reason for paying attention to roll-keeping is to form views about whether children are at risk of significant harm, as Ms Keenan observed. I agree with Ms Keenan that, if children are not attending school and no reason for this has been provided, the school should have a documented process of contacting the child's parent or caregiver and recording reasons for the child's absence.

Finding

For the reasons given above, I find that Eagle Arts did not provide a safe and supportive environment for students by means that include persons who are employed at the school being employed in accordance with Part 2 of the Child Protection (Working with Children) Act and maintaining a student enrolment and attendance register (Education Act, s 47(1)(g)(ii) and (iii)).

Premises and buildings

One of the registration requirements is that school premises and buildings are satisfactory (Education Act, s 47(1)(f)).
At the inspections in October 2017, Eagle Arts did not provide a current annual fire safety statement for any of its campuses. It is required, by the Manual, to maintain details of annual fire safety statements (cl 3.4). An owner of a building is required to obtain an annual fire safety statement under cl 176 and 177 of the Environmental Planning and Assessment Regulation 2000. At the time of the hearing, Eagle Arts had still not provided a current annual fire safety statement for the Broken Hill campus. I do not accept that the certificates of inspection put forward as satisfying this requirement did, in fact, satisfy it.
The provision of a fire safety statement is an important obligation, as the requirement is designed to ensure the safety of students. In the absence of a fire safety statement for Broken Hill, which Eagle Arts had ample time to provide, I am not satisfied that the school premises and buildings at Broken Hill comply with fire regulations or that they are satisfactory.

Proper governance

It is a registration requirement that policies and procedures for the proper governance of the school are in place (Education Act, s 47(1)(b1)).
The internal review report found that the school had not demonstrated the implementation of policies and procedures for proper governance, in that: 1. the school's board guidelines did not include a formal induction process for new board members; 2. the board operating guidelines provides there must be a board vice chairman, but no vice chairman is identified in the list of responsible persons; 3. the functions and responsibilities described in the school board's operating guidelines are premised on a separation of the role of board chair and principal (such as that the principal reports to the chair and the chair oversees the annual principal evaluation process), yet the school's list of responsible persons identifies that the principal is the chair; 4. the principal's conflict of interest disclosure records no conflicts of interest to declare, whereas there are inherent conflicts of interest arising from the same person holding the roles of principal and chair; 5. the school does not have a register of all related party transactions which is validated by an external independent auditor as required; and 6. the school has not demonstrated a legal compliance process for facilitating its compliance with all relevant legislation and reducing any risk of non-compliance.
Eagle Arts did not present any serious challenge to the factual basis for this finding in the internal review report.
I find that the school does not have policies and procedures in place for its "proper governance" in that the policies and procedures which are in fact implemented permit the principal to act in the role of chairperson of the Board, without declaring conflicts of interest as they arise. This is inconsistent with the requirement to implement policies and procedures dealing with conflict of interest. It is not sufficient to have one policy in writing, but to put into practice a conflicting policy on a sustained basis.
The Manual states in cl 3.9.3 that, in general terms the requisite policies and procedures for proper governance must be consistent with properly accepted community norms for school governance. The Manual requires the responsible persons for a registered non-government school to have in place a document describing the school's legal compliance process to facilitate its compliance with all relevant legislation and reduce any risk of non-compliance (cl 3.9.3.1). It also requires responsible persons to have in place and implement policies and procedures related to related party transactions, arranging for an external audit of the school's register of all related party transactions on an annual basis (cl 3.9.3.3).
Notwithstanding that the internal review report addressed these issues, Eagle Arts did not provide any evidence of changed policies or practices.
I find that Eagle Arts did not comply with these requirements of the Manual.
I am satisfied for all of these reasons that Eagle Arts is non-compliant with the registration requirement in s 47(1)(b1).

Educational and financial reporting

One of the registration requirements is that a school must have policies and procedures to ensure its participation in annual reporting. This is to publicly disclose the educational and financial performance measures and policies of the school, and 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 (Education Act, s 47(1)(l)).
Eagle Arts' annual report, which was due to be submitted to the Authority on 30 June 2017 (Manual, cl 3.10.1), was received on 13 August 2017. It was not lodged "on time" despite Ms McIntosh's written evidence that it was.
The annual report was required to be made available publicly (Manual, cl 3.10.1). Eagle Arts did not answer the question about how the report was made available publicly. Further, according to the uncontradicted evidence of Anne Keenan, Eagle Arts' website stopped working. Ms McIntosh said that the school does not have a website and previously had a Facebook page. I am not satisfied that Eagle Arts ever made its annual report for 2017 publicly available.
Eagle Arts did not provide a number of reporting measures in its 2017 annual report, as required by cl 3.10.1 of the Manual, including details of the teacher accreditations of all teaching staff responsible for delivering the curriculum and attendance rates for each Year level and the whole school. Notwithstanding the Authority's request for these matters to be addressed in late 2017, Eagle Arts did not address them. Ms McIntosh explained that certain sections of the report were not completed (such as questions pertaining to the recording of assessment and rates of attendance) as these were the subject of determination in anti-discrimination proceedings it had brought against the Authority. This is an entirely unsatisfactory explanation.
Eagle Arts' failure to report on time in 2017, and to report at all on all of the matters it was required to report on, is indicative of a lack of effective policies and procedures in respect of annual reporting.
I find that Eagle Arts does not have policies and procedures which ensure its participation in annual reporting as required by s 47(1)(l) of the Education Act. It has therefore failed to comply with this registration requirement.

Conclusion

Some of the registration requirements which were not, at the time of the hearing, being complied with, compromised the safety of students. This includes the failure to ensure that all teachers and volunteers had working with children check clearances, the failure to obtain an annual fire safety statement for the Broken Hill campus and the failure to maintain an attendance register. Other non-compliances indicated a lack of effective policies and procedures to ensure that the school complies with its legislative and other obligations, including that teachers are accredited and that an annual report, complying with the requirements in the Manual, is submitted in a timely manner. The failure to comply with the requirements to provide the minimum curriculum for Years 7 to 10 students meant that all students, including students with learning difficulties, had their educational opportunities significantly compromised.
I am satisfied that Eagle Arts failed to comply with a significant number of the registration requirements. Taken as a whole, these non-compliances were egregious.
Having regard to Eagle Arts' failure to comply with the registration requirements in: 1. s 47(1)(b1) (proper governance); 2. s 47(1)(d) (teaching staff); 3. s 47(1)(f) (premises and buildings); 4. s 47(1)(g)(ii) and (iii) (safe and supportive environment); 5. s 47(1)(j)(ii) (Curriculum 7 to 10); and 6. s 47(1)(l) (annual reporting policies and procedures),
I find that the Authority's recommendation that the registration of Eagle Arts as a non-government school for Years 9 to 11 be cancelled is the correct and preferable decision.
Having regard to Eagle Arts' failure to comply with the registration requirements in: 1. s 47(1)(b1) (proper governance); 2. s 47(1)(d) (teaching staff); 3. s 47(1)(g)(ii) and (iii) (safe and supportive environment); and 4. s 47(1)(l) (annual reporting policies and procedures),
I find that the Authority's recommendation that the registration of Eagle Arts as a non-government school for Year 12 not be renewed is the correct and preferable decision.
Whilst it is arguable that it was permissible for me to do so, I have not had regard to the requirement relating to premises and buildings in relation to the non-renewal recommendation, since this was mainly relevant to Broken Hill, which did not have Year 12 students. Nor have I had regard to the failure to comply with the registration requirement in s 47(1)(j)(ii), relating to Years 7 to 10 curriculum, in relation to the non-renewal recommendation.
Given the serious and extensive nature of the non-compliances, I doubt whether any discretionary factors could have led to a different outcome. However, the discretionary matters which are set out below, all confirm my view that these are the correct and preferable recommendations.

Matters relevant to discretion

The attitude of Ms McIntosh, the school's principal and chairperson of the school Board, to the school's obligation to teach the curriculum and to comply with the law was, at best, cavalier. This strongly tends in favour of confirming the recommendations the subject of this application for review.
Ms McIntosh gave evidence that the school was still teaching Year 12 students at two campuses, notwithstanding that the school's registration for Year 12 expired in April 2018. When questioned in cross examination about whether the school was registered for Year 12, Ms McIntosh said this was "not settled" and then later that it was "uncertain." In re-examination, she said she continued to teach Year 12 students because she did not want to put them on the street straight away. Admitting that she had made a decision to continue to teach Year 12 students, Ms McIntosh commented, "We're not talking great numbers, we're only talking a few, I have to make a call on that, I appreciate I could get into trouble, I still have to make the call that's in the best interests of student welfare." Referring to a "young woman [who] has also had a baby and come back to school," Ms McIntosh said she had decided to "make a call." This indicates a conscious decision to continue teaching Year 12 students despite either knowing that the school was not registered to do this, or at the very least being reckless as to the school's registration for Year 12. It also indicates that Ms McIntosh is prepared to disregard the school's and her own legal obligations when she considers it appropriate to do so.
The school has not been registered to teach Year 12 since April 2018. It is an offence to conduct or knowingly permit or assist in the conduct of a non-government school which is unregistered (Education Act, s 65). It is a very serious matter that Ms McIntosh was prepared to allow Eagle Arts to continue to teach students after its registration had expired, even if it were to be accepted that she considered that its registration status was uncertain.
When Ms McIntosh was asked whether she would agree that she had no intention of complying with the Authority's curriculum requirements, she replied that the question did not make sense. However, her evidence made clear that she only complied with the curriculum to the extent she considered this to be desirable. She did not take seriously the requirement to ensure all teachers were accredited and did not even accept it was a requirement. Nor did she take seriously the requirement to ensure all teachers and volunteers had working with children check clearances, despite her protestations to the contrary.
On 14 November 2017, Ms McIntosh wrote a letter in her capacity as "Chairperson of the Board" which was not addressed to anyone but which was apparently sent to parents. In the letter, she said that the school was five weeks away from closure, and stated: "In a worst case scenario the school will not close but run illegally." It continued: "Gab McIntosh understands that she will face prosecution if she runs illegally but is ready to accept this outcome and keep 100 precious teenagers at school." Under cross examination, Ms McIntosh agreed that she had said that, if Eagle Arts' registration were cancelled or not renewed, the school would not close but run illegally. She said that that remained her view. It is consistent with her other evidence, in which she portrays herself as the guardian of the students' welfare, and indicates a disrespect for the law, the curriculum and the Authority.
All of these matters mitigate strongly in favour of confirming the Authority's recommendations.

Costs

The Authority indicated that it wishes to be heard in relation to costs. Both parties indicated that they consented to the determination of the issue of costs on the papers. I consider that the issues for determination in any costs application can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal (Civil and Administrative Tribunal Act 2013, s 50(2)).
I have made orders accordingly.

Orders

I make the following orders: 1. The recommendations of the respondent to cancel the applicant's registration as a non-government school for Years 9 to 11 and not to renew its registration as a non-government school for Year 12 are confirmed. 2. A party wishing to make a costs application is to file submissions and any evidence in support of such an application within 28 days of these orders. 3. The other party is to reply, including by providing evidence and submissions, within 42 days of these orders. 4. Any application for costs is to be determined on the papers.

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: 20 December 2018

Environmental Planning and Assessment Regulation 2000(NSW)

(Education Act 1990(NSW)

At a glance

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Judgment (23 paragraphs)

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Legislation Cited (8)

Cases Cited (6)

Cited By (1)