On 11 November 2020 EMY applied to the Tribunal for administrative review of a decision made by the NSW Education Standards Authority (the Authority) to recommend refusal of her application under Part 7 of the Education Act 1990 for home schooling registration of her son ENA. On the same date EMY applied for an order under s 60 of the Administrative Decisions Review Act 1997 (ADR Act), seeking an order that the decision to reject re-registration for home schooling be suspended pending the determination of the review application.
The application for a stay was heard on 1 December 2020, and refused, with reasons to be provided later. The following are the reasons for that decision.
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Background
On 16 June 2020 EMY applied under s 71 of the Education Act for registration of ENA, born in 2007, for home schooling. The application was opposed by EMZ, father of ENA.
A recommendation for refusal was made on 19 August 2020, and affirmed on internal review on 12 October 2020. The internal review decision referred to court orders made on 23 January 2017 by the Federal Circuit Court of Australia relating to ENA, which provide that both parents have equal shared parental responsibility for the children ENA and ENB (born in 2010) in relation to their current and future education, and the decision in Board of Studies, Teaching and Educational Standards v Vandenbovenkamp [2016] NSWCA 268. The internal review determination referred to submissions made and documents provided by EMY, including copies of orders made by the Federal Circuit Court in May 2020, which note that there is no requirement for ENA to spend time with or communicate with EMZ.
The internal review determination concluded that in circumstances where EMZ objected to ENA being registered for home schooling, and the court orders of 23 January 2017 that both parents have equal shared parental responsibility in relation to current and future education remain in force, it was not open to the Authority to recommend that the application be accepted.
In her application for administrative review EMY states that ENA has been in her care and custody 100% of the time since July 2018, that there are current proceedings which have suspended orders for contact and communication with his father, and that all the requirements for registration are met.
In the application for a stay EMY states that ENA's mental health currently prevents him from leaving the home let alone attending school and they are unable to comply with the requirement of the Education Act that he be otherwise enrolled in school. The decision effectively denies ENA the right to an education that is accessible to him.
Directions were made when the matter was first listed for EMZ to be notified of the application for review. EMZ applied under s 44 of the Civil and Administrative Tribunal Act 2013 to be joined as a party to the proceeding. An order joining EMZ as a party was made by consent on 1 December 2020.
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Legislation
The Education Act provides in Part 7 for an application by a parent of a child for registration of the child for home schooling. Section 72 provides:
72 Registration for home schooling
(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,
if 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.
…
An application may be made to the Tribunal for administrative review under the ADR Act of a recommendation of an authorised person that the Minister refuse to register a child for home schooling: s 107(1)(d) Education Act.
The general rule is that an application for administrative review of a decision does not prevent the decision from taking effect. The Tribunal may make an order "staying or otherwise affecting the operation of the decision under review". The power to do so is set out in s 60 of the ADR Act:
60 Operation and implementation of decisions pending applications for administrative review
(1) Subject to this section, an application to the Tribunal for an administrative review under this Act of an administratively reviewable decision does not affect the operation of the decision under review or prevent the taking of action to implement that decision.
(2) On the application of any party to proceedings for an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application.
(3) The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account:
(a) the interests of any persons who may be affected by the determination of the application, and
(b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and
(c) the public interest.
(4) While an order is in force under this section (including an order that has previously been varied on one or more occasions under this subsection), the Tribunal may, on application by a party to the proceedings, vary or revoke the order by another order.
In QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAP 113 the Appeal Panel discussed the principles concerning stays and other orders under s 60 in the following terms:
31. The Tribunal recently considered the power under s 60 of the ADR Act in Loveday v Commissioner for Fair Trading [2018] NSWCATAD 80 (Loveday). In that decision it was held at [8]:
"… Section 60(2) and (3) give the Tribunal a single discretionary power to make a stay order or to refuse to make such an order taking into account all relevant considerations. Secondly, the words "to secure the effectiveness of the hearing" include a situation where the applicant will suffer irreparable loss in the sense that no recompense for it can be obtained if the application is ultimately successful: Re Pelling and Secretary, Department of Aviation [1984] AATA 179; (1984) 5 ALD 638 at 639. It is not confined to the situation where a hearing would be pointless because the applicant will go out of business if a stay is refused. …"
32. The relevant considerations in deciding whether to make an order under s 60(2) include:
(1) whether the order is appropriate to secure the effectiveness of the determination of the application for review: ADR Act, s 60(2);
(2) whether the order is desirable taking into account:
(a) the interests of any persons who may be affected by the determination of the application for review: ADR Act, s 60(3)(a), Loveday at [10], Re Scott and Australian Securities and Investments Commission [2009] AATA 798 (Re Scott) at [4];
(b) any submission made by or on behalf of the administrator who made the decision to which the application relates: ADR Act, s 60(3)(b), Loveday at [10], Re Scott at [4];
(c) the public interest: ADR Act, s 60(3)(c), Loveday at [10], Re Scott at [4];
(3) the applicant's prospects of success on the application for review: AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 (AVS Group) at [129], Loveday at [10] and [11], Re Scott at [4].
33. The circumstances that are relevant in any particular case to the considerations identified above may well overlap or be interrelated.
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Submissions on the stay application
EMY stated that ENA is currently in Year 8, and the approval granted in February 2020 for home schooling ended on 15 August 2020. She submits that an order should be made to enable the continuation of home schooling for ENA until the administrative review application is determined by the Tribunal, to avoid her being pressured because of non-compliance with the Education Act. She has been receiving phone calls from the high school liaison officer.
EMZ opposed the application. He stated that ENA stopped going to school in September 2019. EMZ provided documents from NSW Police, a copy of the court order of 23 January 2017, and court orders listing further proceedings under the Family Law Act 1975 (Cth) in June and July 2021.
The Authority opposed the application for an order under s 60 of the ADR Act, submitting that an order is not necessary or appropriate to secure the effectiveness of the determination of the application, and that since the previous approval for home schooling ended in August 2020 the Tribunal has no power to make an order in the terms sought by EMY.
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Consideration
The Tribunal is not satisfied that an order under s 60 is appropriate in the circumstances to secure the effectiveness of the outcome of the administrative review, as required by s 60(2) of the ADR Act. The decision under review is the decision of the authorised person to recommend to the Minister that the application be refused. The application for administrative review was made within 30 days of notification of the recommendation as affirmed on internal review. Under s 72(4) of the Education Act, the Minister may not refuse to register ENA for home schooling until the Tribunal has determined the application for review. Accordingly, an order under s 60 is not required to suspend the operation of the decision to recommend refusal of home schooling, or to prevent any loss in the sense referred to in Loveday v Commissioner for Fair Trading [2018] NSWCATAD 80.
Further, having considered the matters referred to in s 60(3) of the ADR Act, the Tribunal is not persuaded that it would be desirable to make an order, for the following reasons.
The interests of persons affected by the review include those of ENA, as well as both his parents. The Tribunal was informed that the formal school year ends on 16 December 2020, some two weeks after the stay application was heard. The directions made on 1 December 2020 include listing of the hearing of the substantive administrative review proceeding on 28 January 2021, before the 2021 school year commences. The evidence before the Tribunal does not establish that the interests of ENA would make it desirable to make an order for the period of the school holidays.
The administrator opposes the application, on the basis that an order is not required under s 60(2) of the ADR Act, and that it is not clear that the Tribunal would have jurisdiction to make an order in the terms proposed by the applicant.
Further, there is no suggestion in the material before the Tribunal that the public interest requires other than that the application for administrative review proceed expeditiously to hearing and determination on the basis of evidence and submissions provided by all relevant parties and in accordance with the requirements of the Education Act.
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Orders
1. The application by EMY to stay the decision on internal review to recommend refusal of the application for registration of ENA for home schooling is refused.
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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
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Decision last updated: 11 December 2020