NSW Education Standards Authority v DMM

NCAT Appeal Panel|2017-04-21

Introduction

This is an appeal from a decision of the Tribunal concerning a recommendation made by the Board of Studies, Teaching and Educational Standards to the Minister for Education in respect of the registration of the respondent's adopted child as a home schooling student under the Education Act, 1990 (the Act).
The appellant is the NSW Education Standards Authority formerly known as Board of Studies, Teaching and Educational Standards. The respondent is the parent of the child who had applied for review of a decision by an authorised representative of the appellant who had recommended to the Minister that the registration of the respondent's daughter for home schooling pursuant to s72 of the Act be refused.
Pursuant to s107(1)(d) of the Act, the recommendation was a reviewable decision under the Administrative Decisions Review Act 1997. (ADR Act).
The Tribunal determined that the correct and preferable decision was that a recommendation should be made that the child be registered as a home schooling student. Accordingly, the Tribunal made the following order: Instead of the recommendation of the Board of Studies, Teaching and Educational Standards that DMM be refused home schooling registration under ss 71 and 72 of the Act for ER, the Tribunal makes the following recommendation: That ER be registered as a home schooling student.
In making this order, the Tribunal also made an order under s64 of the Civil and Administrative Tribunal Act, 2013 (NCAT Act) to anonymise the names of the respondent and her daughter because the proceedings in part dealt with "medical and psychological matters concerning a person with a disability who, like her family, could be readily identified, to her possible detriment". Consequently, the respondent was referred to as DMM and the child as ER.
Neither party in this appeal contended that such an order should not be made in the appeal proceedings. Accordingly, we will make an order to prevent the publication of the name of the respondent or the child in the following terms: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013, (i) the names of the respondent and of the child concerned are not to be published. Note: A reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

Grounds of appeal and submissions

The appellant filed a Notice of Appeal on 5 December 2016.
The Notice of Appeal raised a single ground of appeal in the following terms: The Tribunal erred in concluding that a student may be registered for home schooling pursuant to s 72 of the Education Act 1990 (NSW) in respect of a period in which the student is aged 18 years or over if the student was aged under 18 years at the time of the application for registration for home schooling made pursuant to s 71 of the Act.
The appellant filed written submissions in support of the appeal and made oral submissions at the hearing the appeal.
The effect of these submissions was that the Tribunal incorrectly construed ss71 and 72 of the Act in deciding at [61] that the date for determining whether the applicant for home schooling is a student under the age of 18 is "at the time the application is made and at the time the Minister makes his or her decision".
The appellant's submissions can be summarised as follows: 1. The Tribunal accepted that the expression "child" in ss 71 and 72 of the Act means a person less than 18 years of age, not "the offspring (biological or adopted) of another regardless of age". 2. The Tribunal determined that the relevant time for consideration of the age of the child was "at the time of the application and at the time the Minister makes his or her decision". This statement is internally inconsistent. Further, the Minister has not made a decision and the child is now over the age of 18. 3. Section 71 of the Act allows a parent to make an application. Section 72 of the Act requires the Minister to register the child or refuse to do so. Section 72 is the critical provision which the appellant submitted "cannot be said to speak as at the time of the parent's application, as opposed to the time of the Minister's decision". Unlike s34(1) of the Act, which is directed to the time of a child's enrolment at a school, s72 is in different terms and the Tribunal's reference to s34 being the "functional equivalent" erroneously distracted the Tribunal from considering the differences in language between those provisions. 4. Registration for home schooling is to operate in respect of a particular period specified in the certificate of registration as required by s73(3) of the Act. Consequently, it is that period, not the time of application or decision, which is the period in which the age of the child must be considered. Such a meaning suitably accommodates the fact that the reaching of a final decision may be protracted having regard to the process of application, recommendation by an authorised person, decision by the Minister and potential appeal to the Tribunal.
The appellant also referred to the decision of Gleeson CJ in Carr v The State of Western Australia [2007] HCA 47; (2007) 232 CLR 138 and submitted that the textual and contextual matters directly relating to ss 71 and 72 of the Act were a surer guide to its construction than the general statement of purpose relied upon by the Tribunal. Further, the appellant said it was inappropriate to construe the legislation by reference to "the emotional or psychological consequences which the competing constructions may have for ER or the respondent" in the manner in which the Tribunal did at [67] - [68].
In oral submissions, the appellant set out a history of the application and the circumstances of ER.
During the course of the appellant's oral submissions, four options were identified as being the point in time at which the age of the child needs to be considered. These were: 1. at the time of the application; 2. at the time of the application and at the time of the decision; 3. during the whole of the period for which registration was sought; and 4. the date proposed for registration.
The appellant said that if either options 3 or 4 were the preferred construction of ss 71 and 72 of the Act, then the appeal should be allowed.
The appellant then submitted that ss 71 and 72 do not empower registration of the child after he or she turns 18 years of age. In this regard reference was made to s73(3) which provides that any certificate issued is to operate for a period to be specified in the certificate not exceeding 2 years.
The respondent filed a Reply to Appeal and written submissions and made oral submissions at the hearing of the appeal.
In the Reply to Appeal the respondent said that the Tribunal was correct in its decision and that a "student could be registered for home schooling beyond the 18th birthday if they were under 18 years of age at the time the application for registration for home schooling was made".
In written submissions, the respondent said that while correct to conclude a student was eligible for registration as a home-school student provided they were under 18 years of age at the time the application was made under s71 of the Act, the Tribunal was in error in concluding that the student must also be under 18 years of age at the time the Minister exercises his or her discretion under s 72 of the Act.
Having set out a chronology concerning ER and her schooling, the respondent made the following submissions: 1. It is necessary for a child to be under 18 at the time an application under s71 of the Act is made and it is sufficient for the purpose of ss 72, 73 and 74 that the child was under 18 at that time without the necessity that the child to "remain under 18 indefinitely pending the conclusion of what the appellant rightfully refers to as a potentially 'protracted" 'process". 2. While there may be an inconsistency with the use of the word "child" within the Act, a construction should be given to that word in the context of ss 72-74 to mean a child who is under the age of 18 when the application was submitted. 3. The construction proposed by the appellant would mean that the Minister would be entitled to ignore any recommendation made by the Tribunal following the exercise of any rights of review that an applicant might have simply because the child, the subject of the application, had turned 18 years of age. On the other hand, the construction which the respondent propounds is consistent with s 108 of the Act which allows the Tribunal to review any recommendation despite the fact the child may have turned 18 in the meantime. 4. The construction proposed by the respondent is consistent with the legislative purpose or object underlying the Act so as to facilitate a final period of registration within which a child may complete their senior studies, provided that the application for registration is submitted before that child's 18th birthday. 5. Having regard to the fact that the Minister's ultimate decision is not reviewable, the effect of protracted delay in the making of a recommendation to the Minister and/or the Minister making a decision may effectively result in the ousting of the jurisdiction of the Tribunal to review any recommendation in the manner provided for in ss107 and 108 of the Act.
In making these submissions, the respondent also referred to various decisions of the High Court of Australia concerning statutory construction. In particular, the respondent made reference to a decision of French CJ and Hayne J in Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56.
The respondent developed these submissions orally at the hearing of the appeal. The respondent made reference to the requirements in the legislation including in connection with curriculum requirements and qualifications of any applicant to provide home schooling.
In making these submissions, the respondent agreed that the Tribunal's decision at [61] was inconsistent. However the respondent submitted that the Tribunal was correct to conclude the child should be registered for home schooling as she was under 18 years of age at the date the application was made.
In relation to four alternatives for the construction of the relevant sections, the respondent said that option 3, namely that a child must be under 18 years of age for the whole of the period of registration, could not be correct. In this regard the respondent submitted it was possible for a child to enrol in a school and complete their education after they had turned 18. The respondent referred to s34 of the Act.
In the present case, the respondent indicated that an application had been made for reregistration of the child for home schooling when the respondent received an earlier certificate which covered home schooling of the child but which expired on the child's 18th birthday. From submissions received, it would seem that an earlier certificate had been provided to expire on the 18th birthday of the child even though this was part way through what might be described as the "academic year".
The Appeal Panel noted that there was no right to challenge the period of a certificate issued under the ADR Act and asked the respondent whether or not any proceedings by way of judicial review had been commenced in relation to the earlier certificate which provided for a period to expire when the child turned 18. The respondent said she could not afford to do so. It was in these circumstances that the original application was made for a further home schooling certificate and thereafter the challenge to the original recommendation refusing such a certificate was filed with the Tribunal.
In reply, the appellant said that s 34(1) of the Act contemplates enrolment of the student and that this may occur prior to commencement of any relevant school year. The appellant also noted that s34(7) of the Act allows accepting adult enrolments. The appellant said that under s34, enrolment and attendance were different and the provisions applicable to school enrolments were not relevant to determining the present proceedings.

Consideration

The present appeal raises a question as to the proper construction of the provisions relating to the registration of a child for the purpose of home schooling under Subdivision 5 of Part 7 of the Act and whether or not the authorised person was correct to make a recommendation to the Minister to refuse renewal of the registration of ER for home schooling because ER had turned 18.
There have been earlier proceedings between the parties, following an application for review by the respondent against a recommendation to refuse a previous application for registration for home schooling when ER was 17. In those proceedings the Tribunal had determined that the child was eligible for registration for home schooling notwithstanding that ER was over the age of 17 years and therefore no longer of "compulsory school-age" as defined in s21B of the Act: DMM v Board Studies, Teaching and Educational Standard [2016] NSWCATAD 38 (First Decision). Consequently, in those earlier proceedings the Tribunal made a recommendation "That ER be registered as a home schooling student".
In making this First Decision, the Tribunal concluded that the word "child" when used in s71(1) of the Act should be given its natural meaning, namely a person under the age of 18 years. In reaching this conclusion Tribunal said at [51] of its reasons in the First Decision: 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 the 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.
Following the First Decision of the Tribunal, a Certificate of Home Schooling Registration was issued on 20 April 2016 whereby ER became "registered under the provisions of Part 7, Division 6 of the Education Act 1990 from ## August 2015 until ## August 2016.": see appeal bundle 3.10. It should be noted that the certificate refers to "Division 6" of Part 7. This seems to be a typographical error, the provisions for registration being found in s72 of Subdivision 5. However, nothing appears to turn on this fact.
The significance of the date of expiry of the certificate is that it is the day before the 18th birthday of RE. It is also a period less than 2 years being the maximum period for which registration of a child for home schooling is permitted under s73(3) of the Act.
The First Decision was not the subject of an appeal. The appellant did not otherwise contend in this appeal that a child could only be registered for home schooling during the period when the child was of compulsory school age.
Also, importantly for reasons set out below, there was no challenge by the respondent to terms of the certificate which limited the period of registration in the certificate issued on 20 April 2016 to a 12 month period ending in August 2016.
As to such a challenge it should be noted that if the authorised person makes a recommendation to the Minister to register a student for home schooling (as opposed to a recommendation to refuse registration), such a recommendation does not appear to be a reviewable decision of a type provided in s107 of the Act. Whether or not the decision of the Minister is otherwise susceptible to judicial review by a court is not relevant to a determination of this appeal.
Subsequently, the appellant made a further application dated 1 May 2016 for renewal of registration for home schooling of ER. This application was made during the period of registration for home schooling of ER following the First Decision and before ER turned 18. It is common ground in the appeal that the registration, if renewed, was for a period commencing on ER's 18th birthday.
The authorised representative of the Minister recommended refusal of the renewal application, which recommendation was confirmed following an internal review. The respondent was advised of that fact by letter dated 14 July 2016. As stated above, this was because "(ER) was not eligible for registration for a period beyond turning 18".
The application for review of this decision by the respondent was lodged with the Tribunal on 29 July 2016. The matter was heard by the Tribunal on 9 November 2016 and the orders and reasons for decision to which the present appeal relates were made 18 November 2016.
The Tribunal determined that the correct and preferable decision was "That ER be registered as a home schooling student". In making this decision the Tribunal said at [57]-[68]: 57 I therefore conclude that the plain meaning of the word "child", as referring to a person under 18, is the one intended by the Legislature in the language of ss 71 and 72. The fact that such is the natural meaning of the word was the reason why the obiter dicta in the earlier decision proceeded on that basis. 58 But if one construes the Act as a whole, as one should, that conclusion is not fatal to the applicant's case. As the respondent observed, s 34 is the functional equivalent of ss 71 and 72. Both deal with the manner in which a pupil enters the education system. Under s 34, the standard method is for a parent to enrol the child in a government school (leaving aside the enrolment of adults under s 34(7)). 59 But that method is not available under the equivalent provisions for home schooling. For good reasons, approval of home schooling cannot be a simple routine process. The procedure (simplifying slightly) is that (1) a parent applies for registration of the child for home schooling, then (2) an authorized person recommends to the minister that the child be registered for home schooling or that registration should be refused, then (3) the minister is to register the child, having regard to the recommendation and any decision of this tribunal, if he or she is satisfied that the conditions subject to which registration is required will be complied with. 60 As the respondent also pointed out, s 34 speaks to the time of enrolment, which is why there is no problem in continuing the year 12 enrolment of school students who turn 18 before completing the HSC. 61 Sections 71 and 72, being the functional equivalent of s 34 in the context of home schooling, speak as at the time of the step corresponding to enrolment, which is the parent's application to register the child. Therefore, provided that the student is under the age of 18 at the time of the application and at the time the minister makes his or her decision, he or she may be registered for home schooling for a period of up to 2 years (s 73(3)). Beyond that time registration will not be possible, and that makes the provision self-limiting. 62 In the present case DMM's home schooling renewal application for ER was lodged on 5 May 2016 and the recommendation that registration be refused was issued on 18 May 2016. DMM requested an internal review on 25 May 2016, and that review was decided, against the applicant, on 14 July 2016. As the applicant pointed out, all of those steps antedate ER's 18th birthday on … August 2016 and she could have received registration while still a minor. DMM submitted that, given the similarity of language between s 34 and ss 71 and 72, continuing school students and continuing home schooled students should as far as possible be treated equally. 63 True it is that in this case the whole 2-year registration period would run after ER has turned 18, which is different from the position of high school students who turn 18 during year 12, but that constitutes no legal obstacle. And, in practice, it would serve the same purpose of maintaining educational continuity. The respondent also very properly acknowledged that permitting the registration of students in ER's position would not create a floodgates problem, impose a substantially increased workload on the board or prejudice any other pupil. 64 It is notable that among the principal objects of the Act as set out in s 5 is "to allow children to be educated at home". (The legislative history of that statutory policy was discussed in the earlier proceedings (at [45])). 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". 65 Section 6 has a bearing on the construction of ss 71 and 72. Its provisions 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 a construction that will more broadly promote those objects, rather than one that attributes an exclusionary or limiting character to ss 71 and 72. 66 The respondent submitted that registering ER in itself would have no consequences 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 the three months during which ER was registered for home schooling this year made a big difference. She was able to be recognized as a student, to obtain a student travel concession card and OPAL card. She was able to obtain student discounts to theatre performances. She was able to tell people who asked her what she was doing that she was continuing to be home schooled. That benefited her emotional well-being. 67 Since turning 18, however, ER feels that she is once again in a no man's land. Her parents tell her she is a student, but the government does not consider her to be one, and because the government does not, other organizations and individuals do not either. That lack of recognition places unnecessary pressure on her 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 so makes it more difficult for her to learn. The reports from her treating doctor, and especially from the clinical psychologist, confirm those observations and strongly support her mother's efforts to renew her registration. While such considerations do not have a direct bearing on the construction of statutory provisions, they have an indirect relevance here through the operation of ss 5 and 6. 68 While I have concluded that ER is no longer a "child" for the purposes of ss 71 and 72, I find that on the facts of this case she is not thereby precluded from being registered as a home schooling student under those provisions. A recommendation to the Minister for Education should therefore be made that ER be registered as a home schooling student.
It is common ground in this appeal that the word "child" when used in Subdivision 5 is referring to a person who is under the age of 18, and not a person who is the offspring (biological or adopted) of another regardless of age.
The only issue raised on appeal is the question of the date on which the person who is to be registered for home schooling must be a child in order to be eligible for registration under Subdivision 5 of the Act.
The Tribunal concluded at [61] that "provided that the student is under the age of 18 at the time of the application and at the time the minister makes his or her decision, he or she may be registered for home schooling for a period of up to 2 years (s 73(3))".
In our view this conclusion was incorrect. Rather, a student who is to be registered for home schooling must be under the age of 18 at the commencement of the period of registration.
Our reasons are as follows.
As stated above, the provisions for registration found in Subdivision 5-Registration for home schooling, ss70-74.
Section 71 of the Act allows a parent of a child to apply in writing to the Minister for registration of the child for home schooling. Section 71 is in the following terms: 71 Application for registration for home schooling (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.
The expression "child" is used in two places in ss71(1). The first is that "A parent of a child may apply in writing to the Minister". The second is in the phrase "registration of a child for home schooling".
Registration for home schooling and the conditions and duration of registration is dealt with in ss72 and 73 of the Act.
Section 72(1) imposes obligations on the Minister to register or refuse to register a child. Section 72 otherwise sets out the manner in which the minister is to discharge this obligation. It is appropriate to set out the whole of this section: 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, 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.
The effect of these sections is that the Minister is obliged to have regard to the recommendations of an authorised person and any decision of the Tribunal and is to register the child if the Minister "is satisfied that the conditions subject to which registration is required to be given will be complied with". Further, s72(4) prevents the Minister from refusing to register a child for home schooling where the authorised person recommends that the Minister refuse to register the child for home schooling unless written notice of that recommendation has been provided to the applicant and either: 1. time has passed for making an application to the Tribunal for an administrative review (or any such application that has been made has been withdrawn); or 2. the Minister has reviewed any contrary recommendation of the Tribunal and the reasons for it.
Where a child is to be registered for home schooling, a certificate of registration is to be issued for the child to the applicant for registration.
Section 73 relates to conditions and duration of registration for home schooling. This section states: 73 Conditions and duration of registration for home schooling (1) The registration of a child for home schooling is subject to the conditions specified in the certificate of registration. (2) The conditions so specified: (a) must comply with the requirements of the regulations, and (b) subject to any such regulations, must provide for the child to receive instruction that meets the relevant requirements of Part 3 relating to the minimum curriculum for schools. (3) Registration of a child for home schooling is to be limited in its operation to a period (not exceeding 2 years) specified in the certificate of registration.
Under subs73(3), registration of the child is "limited in its operation to period (not exceeding 2 years) specified in the certificate of registration". That is, the registration operates for the period specified up to a maximum of 2 years.
Any registration may be cancelled under s74(1) if the parent of the child: (a) has failed to ensure that the child receives instruction in accordance with the conditions to which the registration is subject, or (b) has refused or failed to allow an authorised person (in accordance with those conditions) to enter, at any reasonable time, the premises where the child receives schooling or to inspect those premises or records required to be kept for the purposes of this Act, or (c) has breached any other condition to which the certificate of registration is subject.
The effect of the appellant's submissions in this appeal is that: 1. the child must be under the age of 18 at all times from when an application is made until the expiry of any period of registration for home schooling; and 2. a certificate cannot provide for a period of registration beyond a child's 18th birthday, even if the period of registration commenced before that time.
In this regard the Appeal Panel notes that the earlier registration and certificate issued expired on the day before the child's 18th birthday.
In our view the appellant is correct in its submission that the child must be under the age of 18 at the commencement of any period of registration. However, the appellant is incorrect in its submission that a child may not be registered for home schooling beyond 18 years of age.
In relation to this latter point, the Act does not expressly state that the child must be under the age of 18 at all times from when the application is made until the expiry of any period of registration for home schooling. Further, the interpretation of the provisions for registration propounded by the appellant that a child may only be registered for home schooling up until their 18th birthday is inconsistent with the objects of the Act and the principles upon which the Act is based. Consequently, any limitation or condition so imposed that truncates the period of registration to the date of the child's 18th birthday without reference to the completion of any process of instruction required under the conditions of registration may amount to an improper exercise of the powers given to the Minister for the purpose of registering a child for home schooling.
To understand why we reach this conclusion as to the proper construction of the provisions in respect of home schooling, it is necessary to have regard to other provisions of the Act relating to the requirements for education of a child.
The Act provides for the education of children in New South Wales. The principles upon which the Act is based a set out in s4 which provides: (a) every child has the right to receive an education, (b) the education of a child is primarily the responsibility of the child's parents, (c) it is the duty of the State to ensure that every child receives an education of the highest quality, (d) the principal responsibility of the State in the education of children is the provision of public education.
Section 5 provides that the principal objects of the Act are as follows: (a) to set out aspects of the school curriculum, including the minimum curriculum for school registration and the curriculum for candidates for the Record of School Achievement and the Higher School Certificate, (b) to provide for the establishment and operation of government schools, (c) to ensure that only government schools established under this Act or non-government schools registered under this Act operate in New South Wales, (d) to allow children to be educated at home, (e) to provide for the grant of Records of School Achievement and Higher School Certificates and for the accreditation of non-government schools that are competent to present candidates for them.
Also, Parliament has expressed its intention in s6(1) of the Act "that every person concerned in the administration of this Act or the education for children of school age in New South Wales is to have regard (as far as is practicable or appropriate" to the following (relevant) objects: (a) assisting each child to achieve his or her educational potential, … (d) provision of an education for children that gives them access to opportunities for further study, work or training, (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, …. (m) provision of opportunities for parents to participate in the education of their children, …
In addition, the objects in s6(1A) of the Act provides that the courses for study for the Higher School Certificate should: 1. have a curriculum structure that encourages students to complete secondary education; 2. foster the intellectual, social and moral development of students, including their capacity to manage their own learning, their desire to continue learning in formal and informal settings after school and the capacity to work with others; 3. provide a flexible structure within which students can prepare for further education and training, employment and full and active participation in the community; and 4. provide a formal assessment and certification of students' achievements.
The functions of the Minister are set out in Part 3 of the Act. Relevantly, under s19 of the Act, the Minister has the following functions: (c) to exercise the functions in connection with registration, and financial assistance to non-government schools, that are conferred or imposed on the Minister under Part 7, (d) to determine, having regard to the requirements of Part 8 and the advice of the Authority, the general method of assessment of candidates for the recognised certificates (whether by public examination or other form of assessment), … (g) any other function conferred or imposed on the Minister under this Act.
One of these functions is the registration of children for home schooling under s72 of the Act.
Education is provided to a student by one of three streams recognised by the Act. These are government schools, non-government schools and home schooling as provided in Parts 6 and 7 of the Act. These streams are in part recognised and enforced under the Act by Part 5 Attendance of children at school, and the provisions in connection with compulsory schooling, matters to which we will return to below.
The requirements for the content of the school curriculum are set out in Part 3 of the Act. Division I of that part deals with primary education for children from Kindergarten to Year 6. Division 2 deals with secondary education. Secondary education is dealt with in two parts. The first part provides for a curriculum for students from Year 7 to Year 10 who are candidates for a Record of School Achievement. The second provides a curriculum for Higher School Certificate candidates being students in Year 11 and Year 12.
Each of these Divisions provide for "minimum" curriculum requirements and "Key learning areas" for students between Kindergarten and Year 10: see ss7-11. In the case of the curriculum for Higher School Certificate candidates, there are also mandatory requirements. English is a required course and all courses provided for the Higher School certificate must comply with a pattern of study and be taught in accordance with a syllabus developed by the appellant and approved by the Minister: see s12.
The Act provides for compulsory schooling where "a child is of compulsory school-age". Section 21B defines this period to be where a child is above the age of 6 years and below the minimum school leaving age. The minimum school leaving age is defined in s21B(2) to mean: (a) the age at which the child completes Year 10 of secondary education (subject to participation required by subsection (3)), or (b) the age of 17 years, whichever first occurs.
The requirements upon a parent of a child for compulsory schooling are set out in s22 of the Act which provides: 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.
It follows that a child must be enrolled and attend school or be registered for home schooling for the whole of the period for which a child is of compulsory school-age. If not, a parent may be liable for an offence under s23 of the Act.
However, a child does not cease to be eligible to attend school having passed the age for compulsory schooling. This is clear from the fact that provision is made for children to complete their Higher School Certificate in Years 11 and 12 during which time they will usually pass compulsory school-age and turn 18.
In the case of government schools, s34 of the Act provides: 34 Admission to government schools (1) The parent of a child may enrol the child at any government school if the child is eligible to attend the school and the school can accommodate the child. (2) A child is, in any case, entitled to be enrolled at the government school that is designated for the intake area within which the child's home is situated and that the child is eligible to attend. (3) The Secretary is to designate intake areas, and the government school or schools for each such area, so that all school-age children in the State will be eligible to attend a government school. (4) The Minister may refuse the admission of a child to all or any government schools if: (a) the child has been expelled from any government school, or (b) the Minister is of the opinion that there is other sufficient reason to do so. (5) A child is not to be refused admission to a government school because of the child's race or religion. (6) The following matters may (without limitation) be taken into consideration in determining whether a particular government school can accommodate a child: (a) the child's age and sex, (b) the kind of school established under section 29, (c) the financial and other resources provided to the school, (d) the existing number of classrooms and other facilities at the school. (7) Nothing in this Part prevents the principal of a government school from accepting an application for the enrolment of an adult at that school for the purposes of receiving instruction.
That is: 1. a parent of a child may enrol that child in a government school if they are eligible to attend, 2. the child is entitled to be enrolled at a government school that is designated for the intake area where that child lives; and 3. the Secretary is to designate intake areas "so that all school-age children in the State will be eligible to attend a government school".
In so providing, s34(7) makes clear that an adult may also apply for enrolment at a school for the purpose of receiving instruction.
Eligibility to attend a school is not defined.
In the case of a non-government school it is a matter for that school to determine. However, there is no automatic right to attend a non-government school simply because of the child's place of residence.
In respect of government schools, s29(3) grants power to the Secretary to determine eligibility criteria for different government schools that might be established. However, this power is subject to the provisions of s34. Also, s34A provides that a principal of the school "may, for the purpose of establishing a child's eligibility to attend or entitlement to be enrolled at the school, require a person seeking to enrol the child at the school to provide proof, to the satisfaction of the principal, of the child's identity, date of birth and home address".
Implicitly, s34A suggests that both eligibility to attend and an entitlement to be enrolled in a government school are dependent upon the child's date of birth. Further, these provisions when read with s34(3) and (4) suggest that a child will be eligible to attend and is entitled to be enrolled in a government school that is in a designated intake area. That is, enrolment and attendance cannot be refused (subject to suspension or expulsion of a child). On the other hand, while an adult may be enrolled at that school, there is no general entitlement to be enrolled or to attend.
The legislation to which we have referred creates a statutory regime for the education of a child until the Higher School Certificate level. This regime provides: 1. A child has "a right to receive an education". The responsibility to do so is "primarily the responsibility of the child's parent". However, it is also "the duty of the State to ensure that every child receives an education of the highest quality". 2. Both a parent and the Minister being persons "concerned with the administration of (the) Act" have duties imposed upon them and are to have regard to the objects of the Act. 3. For students of all ages, the Act has as its objects assisting each child to achieve their potential, provide access to opportunities for further study, work and training, mitigate educational disadvantages and provide special educational assistance to children with disabilities; 4. For those students attending in Years 11 and 12 and doing the Higher School Certificate, education must be provided in accordance with the curriculum requirements, and structured in a way that encourages a child "to complete secondary education" and provides "formal assessment and certification of students' achievements".
As can be seen from this summary, the Act has as one of its purposes the provision of education for a child which is usually intended to be completed up to Years 11 and 12 and/or for the award of the Higher School Certificate. The responsibility on a parent and the State to educate a child do not cease merely because the child has passed compulsory school age.
Section 34(2) provides a child is guaranteed a right to be "enrolled" in a government school that is "designated for the intake area in which the child's home is situated" if the child is "eligible to attend". Eligibility to attend is one of the criteria in addition to the geographical location of the child's home. As explained above, that eligibility criteria includes the age of the child.
It follows the student must be under 18 at the time of enrolment and first attending school in consequence of being enrolled. Otherwise a student could be enrolled as a child at age 17 to commence his or her schooling at the particular school many years in the future, well after he or she turned 18.
However, provided a child is enrolled and attending school before they turn 18, the right to attend is not expressed to cease upon the child turning 18. Rather the Act contemplates the completion of the education process up to the award of the Higher School Certificate if the requirements of s95 of the Act are met.
One of the express objects of the Act is "to allow children to be educated at home". This is clearly an alternative to schooling at a government or non-government school. There is no qualification in the Act that limits such education or registration for home schooling to a period when the child is of compulsory school-age. Neither party contended to the contrary in this appeal.
Registration of a child for home schooling is analogous to the process of enrolling a child to attend school.
Both parties agree that the student must be a child, that is less than 18, at the date the application is made. This must be correct because the operation of the Act in respect of the obligations cast on the parent (including guardian or carer) and the State is in respect of the education of "a child".
However, registration and any conditions imposed for such purpose only operate during the currency of the period of registration and it is during this period that the parent is required to give the necessary instruction as required by any conditions imposed.
It follows that a student to be registered for home schooling must also be a child (under 18) at the commencement of the period for which they are to be registered. Otherwise, there would be no existing duty on the parent to educate the child at the commencement of the period of registration (because the child was 18) and no right of the child to otherwise be enrolled and attend a government school in his or her designated intake area.
This interpretation is also consistent with the limited provisions in the Act relating to the education of adults. Unlike s34(7) of the Act, which permits adults to be enrolled at a government school, no similar provision permitting registration of an adult for home schooling is included in the Act.
That does not mean the child must be under 18 for the whole period of registration as submitted by the appellant.
There is no express provision in the Act that limits the period of registration until a child turns 18. The Act only provides a maximum period of registration of 2 years.
Such a limitation until the child's birthday is inconsistent with the provisions in the Act imposing mandatory conditions as part of the registration process.
Section 73(2)(b) provides that, subject to any Regulation, the conditions for registration for home schooling "must provide for the child to receive instruction that meets the relevant requirements of Part 3 relating to the minimum curriculum for schools". Clearly this is to ensure that the parent applying for home schooling is obliged to provide the necessary level of education to meet standards equivalent to those applicable if the child attended a school. The Minister may only register a child for home schooling "if satisfied the conditions … will be complied with".
There is no Regulation that removes these particular requirements.
In respect of those conditions, there is no definition of the expression "minimum curriculum". The expression "minimum curriculum" is only mentioned in the headings of ss 8 and10 of the Act, which relates to the curriculum for Kindergarten to Year 10:
However, there are mandatory curriculum requirements for Years 11 and 12 and the Higher School Certificate: see s12. Because the requirements for Higher School Certificate candidates are mandatory, they must also be minimum requirements for this part of the curriculum. As such, any conditions for registration for home schooling for years 11 and 12 must include such requirements.
Consequently, any registration for home schooling for Years 11 and 12 and the Higher School Certificate level will be subject to the minimum requirements for the curriculum found in s12 of the Act.
If the period of registration is truncated by reference to the child's date of birth, and not by reference to completion of the process of instruction as contemplated by the statutory requirements, the child will not receive the intended education. The Minister would have approved registration on terms that would not provide for the completion of the education process in circumstances where no further period of registration could be obtained. Neither the parent nor the State will be thereafter under an obligation to provide to the child an education that meets the objectives of the Act and the standards set in respect of the relevant curricula. Further, the child would otherwise have lost any right to attend a government school as provided in s34 and complete his or her education up to a Higher School Certificate level, unless permitted to enrol as an adult.
These matters count against a construction that limits registration to a period ending when a child turns 18 rather than until completion of the intended program of instruction or 2 year period, whichever occurs first.
There are other indicators in the legislation supporting a construction that registration may continue after the child turns 18 until the process is completed (subject to a 2 year maximum): 1. A child does not cease to be eligible to attend school when they turn 18 as long as they were a child when enrolled and are eligible to attend; 2. A child is entitled to complete their education at school up to the award of the Higher School Certificate, which process will frequently, if not in most cases, occur after the child turns 18; 3. Home schooling is an alternative path for completion of a child's education, but involves an education process of the same duration and to provide the same content; 4. While home schooling may be "no cost" alternative to the State providing education for a particular child, the obligations of the State under the Act to ensure a child receives an education generally on terms provided under the Act are not expressed to expire on the child turning 18;
It follows that the interpretation of the Act contended for by the appellant that the registration of a child for home schooling cannot continue after he or she turns 18 should be rejected.
Finally, we should deal with the appellant's submission that the period of registration is limited to a maximum of 2 years and there is no need to be registered after a child turned 18. This lack of need was said to support the proposition that registration could not continue after a child turned 18.
In making this submission the appellant conceded that there may be consequences for the child because the certificate of registration expires. However the appellant said any collateral benefit that was lost, such as obtaining a concession relevant to secure admission to university, was not a relevant consideration in determining an application for registration for home schooling or the period of registration.
In our view this submission should not be accepted. This submission seeks to compartmentalise the process of education and interpret the Act in a manner inconsistent with its terms.
As we have set out above, the Act clearly recognises a process of education that begins at Kindergarten and extends up to Years 11 and 12. That may or may not involve the attainment of awards under Part 8 Division 2 of the Act, a matter dependent on both achievement and the education model (ie school or home schooling) selected.
While children may receive less or no direct benefits from the State because of the education model chosen by their parents, the proposal for education and any indirect benefits arising from registration are matters relevant to registration and the terms on which it is approved. The objects specified in the Act allow flexibility in the education model, subject to any process of approval being on terms that satisfy the obligations of a parent and the State under the Act.
Lastly, the provision of a maximum period of 2 years for registration is consistent with the fact that 2 years is the ordinary period for completion of that part of a child's education in Years 11 and 12 to Higher School Certificate level and allows a sufficient period regardless of the date on which the child was born.

Resolution of the appeal

Notwithstanding these views, the problem in the present case is that it concerns an application for registration for a period commencing on the 18th birthday of ER. That is, the application was made to register ER at a point in time to commence when she is no longer a child.
For the reasons set out above, in our view this is not permissible. We note that the respondent in her very able submissions readily conceded that the point was in her particular case largely moot as events had moved on. She took on the role of contradictor in the appeal in order to clarify the position for future parents and students.
If any error arose in relation to the registration of ER for home schooling it related to the conditions of and the period of registration provided in the certificate which expired in August 2016. However, that is not a matter which is the subject of this appeal.
It may be that the decision of the Minister to register a child for home schooling on terms and conditions that mean the home schooling process may not be completed is not a matter which is a reviewable decision under the Act and the ADR Act. Whether or not such a decision might be susceptible to judicial review by the Supreme Court of New South Wales is not a matter which we are required to, or should, determine.
However, in light of the conclusions that we have reached it is appropriate that the appeal be allowed, order 1 made by the Tribunal on 18 November 2016 should be set aside and the recommendation to refuse the application affirmed.

Orders

Accordingly, the Appeal Panel makes the following orders: 1. The appeal is allowed and the decision made on 18 November 2016 is set aside. 2. The decision to recommend refusal of the application of DMM dated 1 May 2016 for registration of ER for home schooling is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar 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: 13 July 2017

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