Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Yeshiva College Bondi Limited v NSW Education Standards Authority [2022] NSWCATAD 270 Hearing dates: 7, 8, 9, 17 and 20 June 2022 Date of orders: 15 August 2022 Decision date: 15 August 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: Dr J Lucy, Senior Member Decision: 1. The respondent's recommendation that the registration of Yeshiva College, Bondi not be renewed is confirmed. 2. The respondent's recommendation that the registration of Yeshiva College, Bondi be cancelled is confirmed. Catchwords: ADMINISTRATIVE REVIEW – Registration of non-government schools – Where applicant is proprietor of a non-government school – Where respondent found that school did not comply with registration requirements – Where respondent recommended cancellation and non-renewal of school's registration – Whether school is compliant with registration requirements – Whether cancellation and non-renewal were correct and preferable decisions Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Education Act 1990 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Children's Guardian Act 2019 (NSW) Ombudsman Act 1974 (NSW) Teacher Accreditation Act 2004 (NSW) Cases Cited: ANC High School Pty Ltd v The Board of Studies [2012] NSWADT 125 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 Eagle Arts and Vocational College Incorporated v NSW Education Standards Authority [2018] NSWCATAD 297 Shi v Migration Agents Registration Authority (2008) 235 CLR 286 Texts Cited: Nil Category: Principal judgment Parties: Yeshiva College Bondi Limited (Applicant) NSW Education Standards Authority (Respondent) Representation: Counsel: J Curtin (Applicant) C Ronalds SC and D Fuller (Respondent) Solicitors: Mills Oakley (Applicant) Lander & Rogers (Respondent) File Number(s): 2021/00249714 Publication restriction: The disclosure of the name of any child currently or formerly enrolled at Yeshiva College other than to the parties and their legal representatives is prohibited. The publication of the name or image of any child currently or formerly enrolled at Yeshiva College Bondi to the extent that that name or image forms part of the evidence given before the Tribunal, or is contained in documents lodged with the Tribunal or received in evidence by the Tribunal, is prohibited. REASONS FOR DECISION 1. The applicant, Yeshiva College Bondi Limited, is the proprietor of a non-government school, Yeshiva College, Bondi (Yeshiva College). 2. In March 2019, the applicant applied for renewal of Yeshiva College's registration. Inspections by inspectors of the respondent (NESA) in 2019 and 2020 identified concerns in relation to the school's compliance with the registration requirements under the Education Act 1990 (NSW) (the Act). The school's registration was twice extended for twelve months to give the applicant time to demonstrate compliance, then extended again for shorter periods after these proceedings had been commenced. 3. In April 2021, an inspector found the school to be non-compliant with some of the registration requirements, including those in relation to governance and curriculum, and recommended non-renewal and cancellation of the school's registration. In May 2021, NESA decided to recommend to the Minister that the school's registration not be renewed and that it be cancelled. An internal review confirmed those decisions. 4. The applicant applied to the Tribunal for a review of the non-renewal and cancellation decisions. 5. The applicant remains non-compliant with some of the registration requirements, including in the areas of curriculum and governance. I cannot be satisfied that it is compliant with requirements concerning child protection. The purpose of those requirements is to ensure that children receive the education to which they are entitled, that the school is governed effectively and ethically and that the students' welfare and safety is protected. I consider, as a matter of discretion, that recommendations should be made to the Minister not to renew and to cancel the school's registration. Accordingly, I have confirmed NESA's recommendations. Background 1. Yeshiva College is a school comprised of about 56 students from Kindergarten to Year 10. The children are educated in eight composite classes. Yeshiva College is a Chabad-Lubavitch Jewish school. 2. Nine members of the teaching staff (some of whom are part-time) are accredited teachers. Other staff members, who are referred to as Jewish studies teachers, are not accredited teachers. 3. In 2012, Rabbi Dr David Slavin (to whom I will refer as Rabbi Slavin) was appointed as Chair of the Board of Directors of the applicant. Rabbi Slavin is also a director of the Institute for Jewish Leadership and Education Association Inc (IJL). 4. On 1 January 2016, Yeshiva College and IJL entered into a service agreement (the IJL Service Agreement). Under this agreement, IJL supplied some staff, including Jewish studies teachers, to the school. 5. In July 2018, Dr David McGregor was appointed as principal of Yeshiva College. 6. In March 2019, Yeshiva College applied for renewal of its registration. 7. On 5 April 2019 and 30 July 2019, NESA conducted inspections at Yeshiva College. Dr McGregor was absent, on extended sick leave, so Rabbi Slavin represented the school at the inspection. 8. On 7 August 2019, Yeshiva College provided NESA with a plan to address some of the concerns communicated to the College at the inspections. 9. On 14 August 2019, Inspector Anita Yates provided a report identifying concerns in relation to the school's compliance with the requirements for registration in the areas of staff, curriculum, safe and supportive environment and management and operation of the school. She recommended that the school's period of registration be extended under s 55 of the Act until 31 December 2020. 10. In August 2019, Joseph Segelman (known as Yossi Segelman) was appointed as the Business Manager of Yeshiva College Bondi Limited. He was employed full time and worked remotely from Los Angeles. 11. On 4 September 2019, NESA's Registration and Accreditation Committee (the Committee) considered Inspector Yates' report and endorsed the recommendations in the report, with the result that the school's registration period was extended to 30 December 2020. 12. In February 2020, Mr Duncan Kendall, formerly Assistant Head of the Preparatory School at the Scots College Sydney, was engaged as Acting Principal of Yeshiva College, whilst Dr McGregor was on sick leave. 13. On 16 March 2020, NESA conducted another inspection of Yeshiva College. 14. Dr McGregor resigned from Yeshiva College and, on 5 June 2020, his employment at the school came to an end. Following Dr McGregor's resignation, Mr Kendall was appointed as principal of Yeshiva College. 15. In a report dated 7 September 2020, Senior Inspector Jane Williams (to whom I will refer as Inspector Williams) identified concerns in relation to the school's compliance with the requirements for registration in relation to teaching staff, curriculum, proper governance and financial viability. She recommended that conditions be imposed on the school's registration in relation to: 1. providing monthly updates to NESA regarding the school's progress in addressing the compliance concerns; and 2. advising parents/guardians of students at the school in writing of the extended period of registration, the reasons for the extended period of registration and the school's plan to address the compliance concerns. 1. Inspector Williams also recommended that the Committee recommend to the Minister for Education and Early Childhood Learning (the Minister) that the registration of Yeshiva College be extended under s 55 of the Act until 31 December 2021. The purpose of this was stated to be to give the school further time to implement its June 2020 action plan for addressing compliance concerns. 2. On 16 September 2020, the Committee decided to recommend to the Minister that conditions be imposed upon Yeshiva College (in accordance with Inspector Williams' recommendation). 3. On 16 October 2020, Yeshiva College sought internal review of the decision to recommend the imposition of conditions. 4. On 5 November 2020, having conducted an internal review, Inspector Nicholas Perkins affirmed Inspector Williams' recommendation to impose specific conditions on the school's registration. 5. On 8 December 2020, the NESA Board decided to accept the recommendations of Inspector Perkins. On the same day, the Director, School Registration and Accreditation, Anne Keenan, wrote to Yeshiva College advising of the Board's decision. 6. On 14 December 2020, the NESA Chief Executive Officer met with representatives of Yeshiva College to discuss concerns regarding the school's compliance. 7. The Minister decided to impose the recommended conditions on the school's registration. 8. On 9 February 2021, Rabbi Slavin signed a Yeshiva College conflict of interest declaration, which was to be completed by a responsible person who has a real or perceived or potential conflict of interest in undertaking the person's duties. [1] Rabbi Slavin declared that he had a real conflict and described it as follows: Children at the school Director of IJL - Salary from IJL for Rabbinical Services 1. On 30 March 2021, Inspector Williams conducted an inspection of Yeshiva College. In a report dated 29 April 2021, she recommended that Yeshiva College's application for renewal of registration be refused and that its registration be cancelled. 2. Inspector Williams indicated in her report that there were concerns about compliance in the areas of teaching staff, external providers, school curriculum, facilities, student welfare, attendance, responsible persons, financial viability, annual reporting and child protection legislation. She found the school to be non-compliant with the curriculum requirements, the requirements for premises and buildings and the requirements for proper governance. The Inspector also found that the School had not addressed the compliance concerns raised in the 2019 and 2020 inspection reports. 3. On 10 May 2021, Yeshiva College provided a response to Inspector Williams' report. 4. On 12 May 2021, the Committee accepted Inspector Williams' recommendations that the school's renewal application be refused and that its registration be cancelled. 5. On 8 June 2021, Yeshiva College applied for an internal review of those decisions. 6. Inspector Brooke Prideaux was appointed to undertake the internal review. On 17 June 2021, an inspection of the school took place as part of the internal review. 7. On 9 July 2021, Inspector Prideaux completed an internal review report. She made similar findings to those made by Inspector Williams. She also found that the school had not addressed the compliance concerns identified in 2019, 2020 and April 2021. Inspector Prideaux recommended that the Board of NESA recommend to the Minister that the registration of Yeshiva College be cancelled under s 59 of the Act and that its application for renewal of registration be refused under s 56 of the Act. 8. On 29 July 2021, Rabbi Slavin provided NESA with the school's response to the internal review report. 9. On 3 August 2021, NESA recommended to the Minister that the School's registration to operate as a non-government school for Kindergarten to Year 10 be cancelled (the Cancellation Decision), pursuant to s 59 of the Act. On the same day, NESA made a recommendation to the Minister that the School's application for renewal of registration be refused pursuant to s 56 of the Act (the Non-Renewal Decision). 10. On the same day, the applicant advertised for a NESA Compliance Officer. The advertisement stated that significant experience in NESA compliance management was essential to the role. [2] 11. On 31 August 2021, the applicant applied to the Tribunal for administrative review of the Cancellation Decision and the Non-Renewal Decision (together, the Decisions) under the Administrative Decisions Review Act 1997 (NSW) (ADR Act), pursuant to s 107 of the Act. 12. On 20 September 2021, Ms Amalia Portelli commenced employment as the NESA Compliance Officer at Yeshiva College. Ms Portelli had previously held compliance manager roles for registered training organisations in the vocational education and training sector but did not have experience in NESA compliance management or in working in schools. [3] 13. On 25 October 2021, Yeshiva College provided undertakings to NESA as a condition of the extension of its registration until 8 April 2022. [4] The undertakings required Yeshiva College to provide certain information to NESA by 21 January 2022, including its working with children check register. 14. On 10, 11 and 12 November 2021, Ms Portelli conducted online training on new policies and procedures which she had developed. These included the new child protection policy, child protection procedures and the code of conduct for staff. [5] 15. On 18 November 2021, Ms Portelli notified NESA of a change to the school's responsible persons. She advised that Mr Joseph Segelman became a responsible person for the school on 15 August 2019. 16. On 2 December 2021, Mr Segelman provided a fit and proper person statutory declaration to NESA. In that statutory declaration, he disclosed that he had declared bankruptcy on 21 May 2007 and in May 2021. 17. On 9 December 2021, Ms Portelli conducted training for the school's responsible persons. [6] 18. Mr Kendall resigned and left the school at the end of 2021. 19. Ms Shaina Feldman, who was in 2021 Head of the Girls' School at Yeshiva College, became acting principal of Yeshiva College at the beginning of 2022. 20. On 24 January 2022, Ms Portelli conducted training for teachers and staff in respect of various new policies she had developed. [7] 21. On 3 March 2022, the applicant notified NESA of a breach of the undertaking provided on 25 October 2021 to record a person engaged in child-related work on the working with children check register. The person in question, a young rabbi, was undertaking work experience and was on the supervision roster for three weeks. His working with children check clearance was verified before he commenced at Yeshiva College, but the working with children check clearance register was not updated with his details. 22. On 7 March 2022, the applicant notified NESA of another breach of the undertaking. A woman was engaged as a Jewish Studies teacher at Yeshiva College. Her working with children check clearance was verified before she commenced at Yeshiva College, but the working with children check clearance register was not updated with her details. 23. On 4 April 2022, NESA wrote to Mr Segelman in response to his correspondence of 2 December 2021. [8] NESA informed Mr Segelman that the Committee had determined on 23 March 2022 that he was not a fit and proper person to hold the role of responsible person for the school. NESA provided a copy of the letter to Rabbi Slavin. 24. Shortly after receiving the letter, Mr Segelman tendered his resignation. However, Rabbi Slavin asked Mr Segelman to stay on at the school. It was agreed, in discussions with Rabbi Slavin and Mr Andrews, that Mr Segelman would stay on until the end of the financial year. Mr Segelman scaled back his activities from that time. He continued to be paid a monthly consultancy fee. [9] 25. On 8 April 2022, Yeshiva College gave a further undertaking to NESA. 26. On 27 April 2022, Ms Portelli provided further training to staff in policies and procedures, including a session on child protection training. The training was compulsory for NESA accredited teaching staff and optional for other staff. 27. The Minister has extended the registration of Yeshiva College on a number of occasions whilst these proceedings have been on foot. Evidence 1. The parties relied upon an extensive amount of evidence. 2. NESA filed a large number of documents under s 58(1) of the ADR Act (a provision which requires an administrator to lodge with the Tribunal documents in its possession or control which it considers to be relevant to the Tribunal's determination of the application). 3. The applicant relied upon affidavits made by Dr Slavin, Mr Kendall, Ms Portelli, Mrs Feldman, Mr Segelman, Mr Richard Andrews (a volunteer at Yeshiva College) and Hudson Digby (a solicitor acting for Yeshiva College). 4. NESA relied upon affidavits of Stan Browne (the Acting Director, School Registration and Accreditation at NESA), Jane Williams and Brooke Prideaux. 5. The parties also filed tender bundles and tendered some additional documents. Hearing 1. The hearing was conducted by audio-visual link over five days, due to COVID-19 restrictions. Oral evidence was given by the parties' witnesses over the course of the hearing. Relevant law 1. Section 47 of the Act sets out the requirements for registration of a non-government school. Subsections 47(1) and (2) relevantly provide as follows 47 Registration requirements for non-government schools (1) For the purposes of this Act, the requirements for the registration of a non-government school are as follows— … (b) each responsible person for the school, and any other person or body having similar functions in relation to the school as those of such a responsible person, is a fit and proper person or body, (b1) policies and procedures for the proper governance of the school are in place, … (d) 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), … (g) a safe and supportive environment is provided for students by means that include— (i) school policies and procedures that make provision for the welfare of students, and (ii) persons who are employed at the school being employed in accordance with Part 2 of the Child Protection (Working with Children) Act 2012, and (iii) school policies and procedures that ensure compliance with relevant notification requirements imposed in relation to persons employed at the school by Part 4 of the Children's Guardian Act 2019 and the Child Protection (Working with Children) Act 2012, and (iv) maintaining a student enrolment and attendance register, … (j) compliance with the requirements set out in Part 3 relating to— (i) in the case of a school providing primary education—the minimum curriculum for a school providing primary education, or (ii) in the case of a school providing secondary education for children during Year 7 to Year 10—the minimum curriculum for a school providing any such secondary education, or … (2) In deciding whether the requirements for registration will be or are being complied with at or in relation to a non-government school, the Authority or the Minister is to have regard to matters relating to the quality of student learning. Such matters include, but are not limited to, the following— (a) the standard of teaching of courses of study provided at the school, (b) student engagement in learning at the school, (c) any matters identified in a risk assessment conducted by the Authority in relation to the school. 1. The proprietor of a non-government school may apply to the Minister for renewal of the school's registration (Act, s 54A(1)). The application must include the following (Act, s 54A(3)): (3) 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. 1. Within a reasonable time before the registration of a non-government school is to expire, NESA is to make a written recommendation to the Minister as to whether or not the registration should be renewed (Act, s 55(1)). If NESA is not satisfied that the requirements for, or the conditions of, registration are being complied with at the school, it may give the proprietor or principal of the school written notice that renewal of registration of the school will not be recommended until the matters specified in the notice have been addressed (Act, s 55(2) and (3)). The Minister, on NESA's advice, may extend the period for which the school's registration was granted or last renewed, in order to enable the matters concerned to be addressed (Act, s 55(4)). 2. The Minister is to renew the registration of a non-government school if the Minister, having considered NESA's recommendation and any decision of the Tribunal administratively reviewing NESA's recommendation, is satisfied that the requirements for, and the conditions of, registration are being complied with at the school (Act, s 56(1)). 3. The Minister may, on NESA's recommendation, cancel the registration of a non-government school by written notice given to the proprietor or principal of the school (Act, s 59(1)). However, the Minister may not do so unless he or she is satisfied that the requirements for, or the conditions of, registration are not being complied with at the school (Act, s 59(2)). 4. A responsible person for a school must notify another responsible person and NESA of the circumstances of certain events as soon as practicable after the event occurs (Act, s 63A(1)). That includes an obligation to notify a responsible person of the circumstances of a bankruptcy upon becoming bankrupt (Act, s 63A(1)(b)). A "responsible person" is defined as follows (Act, s 3(1)): responsible person for a school means— (a) the proprietor of the school and, if the proprietor is a corporation, each director or person concerned in the management of the school, or (b) a member of the governing body of the school, or (c) the principal of the school. 1. NESA 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)). 2. NESA has made the "Registered and Accredited Individual Non-government Schools (NSW) Manual" (the Manual). The Manual contains information about the Act and NESA'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. The unchallenged evidence of Stan Browne is that the Manual has been approved by the Minister for Education as rules of NESA and also that a new version of the Manual came into effect on 1 January 2022. I accept that evidence. 3. An application may be made to the Tribunal for an administrative review under the ADR Act of a recommendation of NESA that registration of a non-government school not be renewed or that it be cancelled (Act, s 107(1)(b), (c)). The Tribunal may, relevantly, confirm the recommendation or make a different recommendation to the Minister concerning the subject-matter of the application (Act, s 108(1)(a) and (b)). 4. This order-making power applies to the exclusion of s 63 of the ADR 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]; Eagle Arts and Vocational College Incorporated v NSW Education Standards Authority [2018] NSWCATAD 297 at [29]; Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589; Shi v Migration Agents Registration Authority (2008) 235 CLR 286). Broad overview of parties' submissions 1. NESA contended that Yeshiva College is not compliant with a number of registration requirements. These include: 1. Teaching Staff: the requirement that teaching staff for the school have the necessary experience and qualifications (having regard to accreditation under the Teacher Accreditation Act 2004 (NSW) but without limiting such other matters as may be relevant) (Act, s 47(1)(d)); 2. Curriculum: the requirements relating to the minimum curriculum for a school providing primary education and for a school providing secondary education to students in Years 7 to 10 (Act, s 47(1)(j)); 3. Safe and supportive environment: the requirement that a safe and supportive environment is provided for students by means that include certain specified matters (Act, s 47(1)(g)); 4. Proper governance: the requirement that policies and procedures for the proper governance of the school are in place (Act, s 47(1)(b1)); 5. Responsible persons: the requirement that each responsible person for the school is a fit and proper person (Act, s 47(1)(b)). 1. NESA submitted that Yeshiva College had a poor compliance history and that this demonstrates a persistence lack of willingness or ability to comply with the registration requirements in the Act. [10] In NESA's submission, the school had a reactive approach which demonstrated the inadequacy of its compliance framework for self-identifying and responding to compliance issues, which in turn indicated its inadequacy for ensuring future compliance. [11] It submitted that the school's compliance history is relevant for two main reasons: 1. first, given the School's poor compliance history, the Tribunal should not accept that the School is compliant with the registration requirements based merely on documents such as policies and procedures, without evidence of implementation; and 2. second, to the extent the Tribunal finds (as NESA submits) that the School is currently not compliant with all of the registration requirements, the School's poor compliance history is relevant to the Tribunal's exercise of discretion as to whether or not to recommend non-renewal or cancellation of registration, including because of what that history indicates about the School's likelihood of future compliance. [12] 1. The applicant's position was that it should be found to be compliant or, failing that, substantively compliant with each of the registration requirements. The applicant submitted that Yeshiva College had demonstrated, through the evidence in the proceedings, that it was capable of ongoing and independent compliance. [13] 2. It was submitted for the applicant that Yeshiva College is demonstrably committed to ensuring ongoing compliance with the requirements of the Act and the Manual. It said that this was evidenced in various ways, including by its creation of the role of NESA Compliance Officer, by its development of its primary and secondary curriculum and by addressing gaps and identifying failings in the school's policies and procedures and ensuring that staff are adequately trained in the new policies. To the extent that there were any ongoing issues, in the applicant's submission they were minor in nature and were not such as to justify cancellation of the school's registration. [14] 3. The parties made detailed submissions about each relevant registration requirement, which are dealt with below. Compliance with registration requirements 1. The first issue for the Tribunal in its review of the Decisions is whether it is satisfied that the requirements for registration are being complied with at Yeshiva College (or, in respect of the Cancellation Decision, whether it is satisfied that those requirements are not being complied with) (Act, ss 55(2), 59). The registration requirements are mandatory (Eagle Arts and Vocational College Incorporated v NSW Education Standards Authority [2018] NSWCATAD 297 at [34]-[38]). The Manual provides that the main purpose of registration is to ensure that the requirements of the Act are being, or will be, met. [15] Safe and supportive environment (s 47(1)(g)) 1. The registration requirement in s 47(1)(g) is that a safe and supportive environment is provided for students by means that include— 1. school policies and procedures that make provision for the welfare of students, and 2. persons who are employed at the school being employed in accordance with Part 2 of the Child Protection (Working with Children) Act 2012 (NSW), and 3. school policies and procedures that ensure compliance with relevant notification requirements imposed in relation to persons employed at the school by Part 4 of the Children's Guardian Act 2019 (NSW) and the Child Protection (Working with Children) Act, and 4. maintaining a student enrolment and attendance register. Compliance with child protection legislation – s 47(1)(g)(ii) and (iii) 1. Section 47(1)(g)(ii) of the Act imposes a registration requirement that a safe and supportive environment is provided for students by means of persons who are employed at the school being employed in accordance with Part 2 of the Child Protection (Working with Children) Act. Part 2 of that Act provides, in s 9A(1), that an employer must not commence employing, or 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. The worker's "relevant details" include the working with children number of the worker's clearance or the application number of the worker's current application and the expiry date for each clearance (Child Protection (Working with Children) Act, s 9A(2)). 2. A worker's details are taken to have been verified only if the relevant details accord with the information relating to the worker recorded in the working with children register as at the date the record is made by the employer (Child Protection (Working with Children) Act, s 9A(3)). The "working with children register" is the register established under s 25 of the Child Protection (Working with Children) Act (Child Protection (Working with Children) Act, s 5(1)). 3. Section 47(1)(g)(ii) of the Act imposes a registration requirement that a safe and supportive environment is provided for students by means of school policies and procedures that ensure compliance with relevant notification requirements imposed in relation to persons employed at the school by Part 4 of the Children's Guardian Act and the Child Protection (Working with Children) Act. Part 4 of the Children's Guardian Act deals with reportable conduct. It imposes obligations upon certain individuals and relevant entitles to make a report about certain allegations and certain conduct. 4. The Manual provides in section 3.6.1 that a registered non-government school must have in place and implement policies and procedures to, amongst other things, ensure that staff who have direct contact with students are informed annually of their legal responsibilities related to child protection and to ensure that requirements to prevent, identify, report and investigate allegations of reportable conduct in compliance with the Children's Guardian Act are made known to staff annually. 5. As indicated above, the school applied for renewal of its registration in March 2019 and NESA conducted an inspection at the school on 5 April 2019. At that inspection, overseen by Inspector Yates, concerns were identified in relation to child protection. 6. A meeting was held between Inspector Yates and representatives of the school including Rabbi Slavin and Richard Andrews on 2 May 2019. Handwritten minutes of that meeting [16] (apparently written by Sally Kelly, a NESA staff member) provide as follows: "AY [Anita Yates] showed records provided to satisfy NESA that all staff had WWCC [working with children check clearance]. Verifications were provided for some people and incomplete for others and missing for others. Records don't show all mandatory fields. Some names don't match – some have volunteer when other records show full clearance. Rabbi – was updated one sent? AY – not aware it's been received. What is school doing? Is this reactive to NESA coming or is it real and lived? Rabbi – When I started in 2012 I put C.P. as a priority. Previous directions in royal com. For child protection. When I spoke to parent re C.P. they under the view that perpetrators will be protected by authority. This template is an oversight. AY. Need to have annual training for C.P. Showed evidence provided by school for this. Year A – mandatory reporting. B – reportable conduct. Must do both every year. …" 1. The accuracy of these notes has not been challenged and I accept that they record, in note form, what occurred at the meeting. I also accept that Inspector Yates' observations about the incomplete and missing working with children check verifications are correct. It was not submitted that they were incorrect and there is no evidence to the contrary. 2. On 7 August 2019, [17] in response to concerns expressed by Inspector Yates, Rabbi Slavin provided a one-page plan to address concerns identified in the 2019 inspection process. He stated that child protection policies and records would be reviewed and updated by Mrs Kaye prior to the end of Term 3 2019. [18] 3. Inspector Yates' report of 14 August 2019 stated that the school's child protection procedures identified the principal as responsible for conducting verifications of working with children check clearances including maintenance of the working with children check register and clearances. However, during the inspection, office staff indicated that they had responsibility for this. The report also found that not all staff had provided a sign-off sheet acknowledging that they had read and understood the school's child protection policy, even though the school's procedures stated that all staff members are required to do that. 4. Inspector Yates also observed that the school's child protection policy contained limited procedural details in relation to how staff are informed of their legal responsibilities in relation to child protection; following up staff who had not received annual child protection training and verification of working with children check clearances and maintenance of records. Further, the school's child protection policy and procedures did not reflect the practices employed by the School in relation to informing staff annually of their obligations relating to child protection and procedures and maintenance of working with children check clearances. [19] 5. In September 2020, Inspector Williams found that the school was compliant with the requirement to have in place and implement policies and procedures to ensure that it meets its legislative obligations in relation to child protection. 6. When Inspector Williams made another inspection report on 29 April 2021, however, she noted that the school's child protection policy, provided to NESA on 22 and 26 February 2021, referred to legislation which was not in force. She considered this to be a "significant error" because it meant that the School's proprietor had failed to ensure that staff were informed of their obligations under the correct legislation in a critical area of operation. She stated that the School had been advised of this change at the inspection in 2020. 7. The child protection policy provided to NESA in March 2021 referred to the correct legislation. [20] However, it was a template policy which had not been adapted by the school and lacked school-specific procedures. [21] Inspector Williams reported that only fourteen staff members attended child protection training, whilst the school's records identified that 25 staff members were engaged in child-related work. [22] 8. The register of working with children check clearances provided to Inspector Williams identified that the school had verified employee working with children check clearances on 18 March 2021, despite many of the staff having been employed well before that date. The school could not provide evidence of previous verifications being completed prior to the employment of staff. The school had not provided evidence of a verification of a martial arts teacher, despite the inspector requesting this. 9. In her internal review report date 9 July 2021, [23] Inspector Prideaux found that the school had not addressed all of the compliance concerns about child protection which were identified in Inspector Williams' April 2021 report. [24] She reported that the updated child protection policy did not describe the school's processes necessary for staff to know how to implement or comply with the requirements set out in the policy. It did not, for example, provide documented processes in relation to obtaining working with children check clearance details from incoming staff or identify who was responsible for child protection training and when that training would occur. The inspector considered that the ongoing deficits in the policies placed the safety and welfare of students at risk. [25] 10. Inspector Prideaux observed that, based on the records provided by the school, it appeared that the school may not currently have a working with children check clearance for all persons in child-related work at the school. She identified two individuals working at the school form whom there was no evidence of a clearance. One of these individuals, who was not a NESA accredited teacher, was allocated to teach English Parsha and PDHPE to the Year 6/8B class on Mondays, English and Art on Tuesdays, and English Parsha on Thursdays. In addition, he was rostered for yard supervision on four separate occasions on Mondays, Tuesdays and Thursdays. [26] 11. Inspector Prideaux's review of the register of working with children check clearances identified "numerous issues and inconsistencies" including incorrect dates and no evidence that the school held a working with children check clearance at all times for four people. [27] Thirteen of the twenty-five records on the register identified an incorrect date for the most recent verification completed by the school; and no evidence was provided to confirm that the school completed a working with children check clearance prior to three people commencing at the school. [28] 12. The records also provided grounds to doubt whether all staff members had signed an acknowledgement that they had received, read and understood the school's child protection policy. The records provided to the inspector identified that seven of the thirty people working at the school had signed such an acknowledgement. [29] There was evidence of fourteen people attending child protection training, but no evidence of a follow up session for those who did not attend. 13. Inspector Prideaux concluded that the school was not complying with s 47(1)(g)(ii) and (iii) of the Act. 14. I accept all the specific findings made by Inspector Yates, Inspector Williams and Inspector Prideaux, outlined above. These were not the subject of any serious challenge by the applicant. There was also some acknowledgement, by the applicant's witnesses, that the school was not compliant at various times with the registration requirements in s 47(1)(g)(ii) and (iii) of the Act. 15. Mr Kendall agreed in cross examination that, in September 2021, the school's child protection policy was not up-to-date and did not identify the person to whom reports should be made. [30] He agreed that it was a critical policy and that it was used as the basis for training staff at staff development days. [31] 16. Ms Portelli gave evidence that she drafted a new child protection policy for Yeshiva College in October 2021, using a precedent from the Association of Independent Schools. She also drafted a Child Protection Procedures document to ensure that staff members were aware of how to implement the policy. [32] 17. On 10, 11 and 12 November 2021, Ms Portelli conducted online training on the Child Protection Policy and Procedures and Code of Conduct. [33] She accepted, when asked about this in cross examination, that it is critical to the welfare of students that these documents are properly understood by staff members and properly implemented. [34] She also accepted that the training on the child protection policy and the code of conduct lasted 20 minutes and "agreed somewhat" that that was not adequate to inform staff about the policies and procedures. [35] Staff members did a quiz following the training and gave wrong answers to about 20% of the questions, which Ms Portelli considered to be a major problem. [36] 18. Ms Portelli annexed to her affidavit affirmed on 7 December 2021 copies of each verification of working with children check clearances for all staff, contractors and volunteers at Yeshiva College. [37] She stated that, as NESA compliance manager, she was responsible for maintaining the working with children check register. She provided a copy of the register identifying what she said were correct dates for verifications. She stated that she had created a new onboarding process whereby staff would need to complete a "WWCC – Screen Declaration Form" before commencing at Yeshiva College. [38] 19. Inspector Prideaux responded to the school's evidence in an affidavit filed on 21 December 2021. In her view, the evidence indicated that each staff member currently engaged at the school in child-related work had a current working with children check clearance verified by the school. However, she identified certain inconsistencies in the school's records. These included differences between the verification dates recorded in the working with children check register and those on the printed copies of the verifications. Inspector Prideaux commented that the archived working with children check clearance register records were mostly incomplete. She also pointed out that there were no verification records for a casual teacher last employed by the school in Term 2, 2021. 20. Inspector Prideaux commented that there was no evidence of staff members having been provided with a copy of the new child protection policy and procedures (introduced in October 2021), the code of conduct and statement of commitment because the respective signed acknowledgement forms were not provided. [39] Although a training session about the new child protection policy was held, not all staff participated in it. Those who did not participate included the cleaners, maintenance staff and Rabbi Slavin. [40] Further, the school's complaints handling policy (on the school's website) referred stakeholders to the child protection policy for raising complaints about reportable conduct or staff misconduct, and the child protection policy was not available on the school's website. [41] 21. In reply evidence, in an affidavit affirmed on 11 February 2022, Ms Portelli produced, for the casual teacher employed in Term 2, 2021, a copy of her working with children check clearance. However, she stated that the casual teacher's working with children check clearance appeared to have been provided by the teacher herself, and she could not locate evidence of the clearance having been obtained by Yeshiva College. She stated that the process she had implemented for onboarding new staff was designed to ensure that no staff commence at Yeshiva College without a clearance first being obtained. [42] 22. Ms Portelli annexed to her affidavit signed acknowledgement forms for the staff who were provided with training. [43] In response to the concern expressed by Inspector Prideaux that not all staff participated in the child protection training session, Ms Portelli provided evidence that she conducted the relevant training for Rabbi Slavin on 25 January 2022, for the facilities manager on 4 February 2022 and for the cleaner on 9 February 2022. The child protection policy had also been uploaded to the school's website. 23. In an affidavit dated 6 June 2022 (the day before the hearing commenced), Ms Portelli provided evidence of the training session on child protection training which she held on 27 April 2022, which was compulsory for NESA accredited teaching staff and optional for other staff. [44] She also provided another updated child protection policy (which states that it was updated in March 2022). 24. In an affidavit dated 14 June 2022, Inspector Prideaux commented that no evidence had been provided that all staff had received, read, understood and agreed to comply with the updated child protection policy. She also expressed concerns that the child protection training was compulsory for NESA accredited teaching staff and optional for other staff. The Manual requires all staff who have direct contact with students to be informed annually of their legal responsibilities related to child protection. In her view, the training materials provided did not address all the child protection responsibilities of the school's staff as required by the Manual. Inspector Prideaux considered it to be of "serious concern" that the school had not required any of its newly appointed staff to undertake training in child protection unless they were appointed as a NESA accredited teacher. 25. Ms Portelli accepted, when being cross examined, that there were some casual teachers who never received child protection training whilst they were at Yeshiva College. [45] She also agreed with the proposition put to her in cross examination that there were some teachers working at the school without any training. [46] Ms Portelli clarified that the training for the Office of the Children's Guardian module was mandatory for NESA accredited teachers only, but all other child protection training was mandatory for all staff. [47] She acknowledged that many Jewish studies teachers and administrative staff did not attend the session on child protection training. [48] She also accepted that the requirement to attend child protection training at the start of each term in the updated child protection policy only applied to NESA accredited teachers and not to Jewish studies teachers. [49] 26. The evidence disclosed that the working with children check clearance of a Jewish studies teacher who commenced on 21 October 2021 was not verified until 11 November 2021. [50] As Ms Portelli accepted, this was a breach of the school's obligations under the Child Protection (Working with Children) Act and a breach of the school's own policy. [51] Having been taken to a number of errors which had been made in relation to the details in the school's working with children check register and archive register, Ms Portelli agreed with the proposition put to her by Ms Ronalds SC that the school's child protection procedures were not being implemented properly and that she had not been implementing them properly. [52] Findings 1. The school has a history of poor compliance with the registration requirements in s 47(1)(g)(ii) and (iii) since the inspection in April 2019, over three years ago. 2. The requirement that employees of the school be employed in accordance with Part 2 of the Child Protection (Working with Children) Act, and thus that the employer has obtained and verified the worker's relevant details, was not complied with at the following times: 1. On 2 May 2019, the school provided working with children check verifications for some, but not all, of its employees, and some of the verifications it provided were incomplete. The records did not show all mandatory fields and some names did not match. Rabbi Slavin was made aware of this; 2. In August 2019, office staff had responsibility for conducting working with children check clearances, contrary to the school's child protection procedures, which stated that the principal was responsible for this; 3. On 18 March 2021, the school verified employee working with children check clearances, even though many of the staff having been employed well before that date. The school could not provide evidence of earlier verifications; 4. On 29 April 2021, when Inspector Williams made her report, the school had not provided any evidence of verifying the martial arts teacher's working with children check clearance, from which I infer that this had not been done; 5. On 9 July 2021, when Inspector Prideaux completed her internal review report, the school had not provided evidence that it had working with children check clearance for all persons in child-related work at the school. One of the persons for whom there was no working with children check clearance was allocated to teach classes; 6. The working with children check register held by the school when Inspector Prideaux conducted her internal review did not include a record of all historical persons who were employed or engaged in child-related work at the school; it included incorrect dates for verifications and showed that the school had failed to verify some clearances; 7. The working with children check clearance of a Jewish studies teacher who commenced on 21 October 2021 was not verified until 11 November 2021 (as Ms Portelli confirmed at the hearing); 8. By 21 December 2021, the school's records indicated that each staff member currently engaged at the school in child-related work had a current working with children check clearance verified by the school, but there were discrepancies between the verification dates recorded in the working with children check register and those on the printed copies of the verifications and no verification records for one casual teacher (it being later confirmed by Ms Portelli that, although the school had a copy of the teacher's clearance, there was no evidence of that teacher's clearance having been obtained by the school); 9. In breach of the undertakings provided to NESA on 25 October 2021, the applicant failed to record two persons engaged in child-related work on the working with children check register (as notified to NESA on 3 and 7 March 2022). One was a person undertaking work experience at the school in February 2022 for three weeks, who was named on the school supervision roster. The other was a Jewish studies teacher who commenced work at the school on 17 February 2022, and whose name was not included on the register until 7 March 2022. [53] 1. The school was non-compliant with s 47(1)(g)(ii) in 2019. Despite Rabbi Slavin being put on notice of this in a meeting with Inspector Yates in August that year, the school did little, if anything, to address the failings in this area. Its plan of 7 August 2019 to address identified non-compliances did not include any measure to address its failure to comply with its legislative obligations under the Child Protection (Working with Children) Act. 2. It may be inferred from the school's verification of records of many existing employees in March 2021 that, before that date, many verifications had not been completed. That is a serious breach of the school's legislative obligation under s 9A of the Child Protection (Working with Children) Act not to commence employing, or 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. As recently as July 2021, the school allowed a Jewish studies teacher who was not NESA-accredited to teach classes without evidence of having a working with children check clearance. Irrespective of whether there was a NESA-accredited teacher with the Jewish studies teacher at all times, this was another serious breach of the registration requirements and of the law. 3. The failings in this area identified by Inspector Prideaux in July 2021 indicate that, at that time and earlier (as demonstrated by the historical records), the school was putting the safety of children at risk, by failing to ensure that all persons at the school involved in child-related work had clearances and that those clearances had been verified. 4. Since commencing at the school in September 2021, Ms Portelli has had a positive impact upon the school's compliance in this area. As the NESA Compliance Officer, she is responsible for maintaining the working with children check register and for the school's child protection policies and procedures. [54] She took steps to ensure that the records identify the correct dates for verifications and developed a new process for onboarding new staff to ensure that the school complies with its obligations under the Child Protection (Working with Children) Act. [55] This has led to a greater degree of compliance. However, Ms Portelli mainly works remotely, going to the school once fortnightly for a staff meeting, and she relied, until at least February this year, upon the school's administration assistant to onboard new staff. [56] That system was not entirely effective. Ms Portelli's evidence at the hearing was that she had changed the system whereby the administration assistant was doing clearances then emailing them to Ms Portelli to avoid the "errors that have occurred." [57] At the time of the hearing, she was onboarding new teachers by video link. [58] 5. Notwithstanding the improvements which have been made to the school's systems in this area, the applicant has continued to breach the legislative requirements in respect of employees under the Child Protection (Working with Children) Act. [59] The non-compliances notified to NESA in March 2022 are particularly concerning as they occurred after these proceedings had commenced and in breach of the applicant's undertakings. They indicate that the applicant is unable to comply with its obligations, even when under external scrutiny and when its ongoing registration is at stake. Ms Portelli admitted that the omission in relation to the person doing work experience at the school for three weeks was only identified by the school after NESA had raised the issue in its submissions in these proceedings. [60] This is consistent with a pattern of the school's compliance activity being predominantly reactive rather than proactive. [61] 6. I am not satisfied that the school is currently compliant with the registration requirement in s 47(1)(g)(ii) of the Education Act. The school depends almost entirely upon Ms Portelli to ensure its compliance with this requirement. However, it is the administration assistant who is on-site and whose office staff must report to when entering Yeshiva College [62] and this is a possible explanation for the breaches of the school's undertakings. There is nobody else at the school who demonstrates any understanding of what is necessary to comply with the registration requirements in this area. Other than by employing Ms Portelli after NESA had recommended that the school's registration be cancelled, Rabbi Slavin has not demonstrated any capacity to address NESA's concerns about non-compliance in this area. Ms Portelli's concession that the school's child protection procedures were not being implemented properly and that she had not been implementing them properly is consistent with the evidence. 7. As for the registration requirement in s 47(1)(g)(iii), that the school's policies and procedures ensure compliance with relevant notification requirements in child protection legislation, the relevant history is as follows: 1. When Rabbi Slavin met with Inspector Yates in May 2019, the school was conducting training in mandatory reporting every second year and training in reportable conduct every other year which was, as Inspector Yates pointed out, in breach of the requirement in the Manual that both be provided every year; 2. In August 2019, the school was not complying with its own policies and procedures which required all staff members to provide a sign-off sheet acknowledging that they had read and understood the school's child protection policy; and the policies and procedures were deficient in procedural details as to how the policies were to be implemented; 3. In September 2020, the school was found to be compliant with this obligation by Inspector Williams. The school's child protection policy as at September 2020 is not in evidence; however, the December 2020 version of the policy referred to the Ombudsman Act 1974 (NSW) and required the principal to notify the NSW Ombudsman of reportable conduct allegations. On 1 March 2020, Part 3A of the Ombudsman Act was repealed and from that time reports were to be made to the Children's Guardian. It may be inferred that the school's policy in September 2020 also provided for reports to be made to the Ombudsman and was therefore non-compliant; 4. In February 2021, the school's child protection policy referred to the wrong legislation (even though the school had been informed of the legislative change at the inspection in 2020); 5. In March 2021, the school's child protection policy referred to the correct legislation, but lacked school-specific procedures; 6. In March 2021, the school was not ensuring that all of its staff members who were engaged in child-protection work were attending child protection training (just over half attended, 14 out of 25); 7. In July 2021, the school's child protection policy continued to lack procedural details. It did not describe the school's processes for implementing or complying with the requirements set out in the policy. Further, only seven of the thirty people working at the school had acknowledged that they had received, read and understood the school's child protection policy and only fourteen had attended child protection training; 8. In September 2021, the school's child protection policy did not identify the person to whom reports should be made; 9. In October 2021, under the guidance of Ms Portelli, the school updated its child protection policy and adopted a new child protection procedures document. [63] Those documents were better adapted to ensuring compliance with relevant notification requirements because they correctly identified to whom reports are to be made and provided better guidance to staff and others as to the circumstances in which notification should occur and as to notification procedures; 10. In December 2021, the school did not have signed acknowledgement forms to indicate that staff had been provided with a copy of the child protection policy and procedures, and three members of staff (including Rabbi Slavin) had not participated in training on the new policy and procedures; 11. By 11 February 2022, in response to NESA's evidence, those three staff members had been trained in the new policies and procedures and the school had signed acknowledgement forms for the staff members who had participated in the training; 12. On 27 April 2022, the school provided training on child protection, which was compulsory for NESA accredited teaching staff and optional for other staff. 1. The school was plainly not compliant with s 47(1)(g)(iii) of the Act before Ms Portelli commenced at the school in September 2021. The school's policies and procedures are now sufficient, in my view, to ensure compliance with relevant notification requirements in child protection legislation, if implemented effectively. However, the requirement is that a safe and supportive environment is provided for students by means that include school policies and procedures that ensure compliance with relevant notification requirements. That requires, as is recognised in the Manual, not merely that the school policies and procedures contain the required information, but also that these policies and procedures are implemented. The Manual provides in this context that "[a] registered non-government school must have in place and implement policies and procedures to" achieve certain relevant outcomes (s 3.6.1, my emphasis). 2. Ms Portelli's evidence about the implementation of the policies was that some teachers were working at the school who had not had child protection training from the school and some teachers had come to the school then left without ever having training. The Staff Induction and On boarding Checklist, annexed to Ms Portelli's first affidavit, provides amongst the items to be checked: "Complete annual mandatory online induction Child Safety and Protection" and "given the Child Protection policy and signed off." [64] Ms Portelli stated that the administration assistant sometimes delivered the necessary child protection training on induction to casual staff. However, she described this training as "minimal." [65] Ms Portelli also conceded that it was difficult to monitor the implementation of policies when there was constantly moving casual teaching staff (as there have been at Yeshiva College). [66] 3. Staff members (including non-NESA accredited teachers) received about 20 minutes of training on the new child protection policies and procedures in November 2021, followed by a quiz. That is an insufficient amount of time for the school to ensure that staff members are aware of and able to comply with their notification obligations under Part 4 of the Children's Guardian Act 2019 and the Child Protection (Working with Children) Act 2012. That is especially the case when that was not the only topic covered in the session, the policies and procedures were new and the child protection training in 2020 was based upon deficient policies and procedures and referred, incorrectly, to repealed legislation. [67] 4. Child protection training was again held in April 2022. Between the child protection training in November 2021 and April 2022, 13 new NESA-accredited teachers had been engaged by the school. [68] The agenda for the training session referred to child protection "do's and don'ts" and also an OCG (Office of Children's Guardian) Child Protection Mandatory Annual Training with a minimum of one module to be completed. [69] Jewish studies teachers who were not NESA accredited teachers were not required to attend this training. As Ms Curtin pointed out on behalf of the applicant, all staff are required to attend the compulsory annual child protection training, which the school scheduled for October 2022. 5. Given the limited amount of time spent on child protection at the training in November 2021, and the circumstance that staff members only got about 80% of questions about that training correct, more time was necessary with all staff to ensure the policies and procedures were being implemented effectively. Further, as Ms Prideaux said at the hearing, additional staff members had joined the school since 2021 who had not been trained. [70] Her affidavit evidence was that the non-trained teachers included four Jewish studies teachers and one administration assistant. [71] It is not clear why the school did not avail itself of the opportunity to train all staff members at the training in April 2022. 6. Ms Portelli's evidence, in conclusion, was that the school's child protection policies were not being implemented properly. I accept NESA's submission that, given the school's poor compliance history, the Tribunal should not accept that it is compliant with the registration requirements based merely on documents such as policies and procedures, without evidence of implementation. Whilst there have been significant improvements in the policies themselves, I cannot be satisfied on the evidence that they are being implemented as required. 7. For these reasons, I am not satisfied that Yeshiva College is compliant with the registration requirements in s 47(1)(g)(ii) and (iii) of the Act. Student enrolment and attendance – s 47(1)(g)(iv) 1. A registered non-government school must provide a safe and supportive environment by maintaining a student enrolment and attendance register (Act, s 47(1)(g)(iv); Manual, s 3.6.2). The Manual provides that provisions for student attendance are integral to providing for student welfare and that student welfare could include monitoring student attendance and strategies for improving unsatisfactory attendance (s 3.6.2). A registered non-government school is required to have in place and implement policies and procedures in relation to maintaining a student enrolment and attendance register and student attendance (Manual, s 3.6.2). Further, 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 (Manual, s 3.8). 2. In 2019, Inspector Yates found the school to be substantively compliant with the attendance requirement but recommended that the implementation of then recently updated attendance policies be reviewed during the period of extended registration. [72] 3. In March 2020, Inspector Williams found the school to be substantively compliant in the area of enrolment and attendance but noted that the school's principal had advised that that the school would develop and provide evidence of implementation of a full suite of policies and procedures for student welfare at the next inspection. [73] 4. In Inspector Williams' report of 30 March 2021, she observed that the school provided inconsistent information about student enrolments. The school attributed the discrepancies in enrolment information to inexperience using the SAS 2000 software, which had been used at the school for a number of years. The school did not provide evidence of implementing its procedures to monitor student attendance and to follow up non-attendance in accordance with the School's Attendance Policy and Procedure. 5. Inspector Prideaux commented, in her internal review report, that the school was unable to produce a single consolidated register of enrolments that contained the required fields of information per student and showing the school's enrolment over time. A review of the school's different types of enrolment reports identified multiple discrepancies in the school's records. The inspector found there to be significant omissions and inaccuracies in the enrolment and attendance records, and information maintained by the school. She found that the school was not complying with the registration requirement to provide a safe and supportive environment by maintaining an enrolment register. 6. In relation to attendance, Inspector Williams reported that the records indicated a significant number of late arrivals across the student population over a 17-week period, but no student had been placed on an attendance improvement plan in accordance with the school's policy. There was no evidence of a report to the Department of Communities and Justice for children who may be at risk of harm due to seemingly unexplained non-attendance or partial attendance. 7. Inspector Prideaux concluded that the school was not complying with the registration requirement to provide a safe and supportive environment by having and implementing policies and procedures for student welfare and by maintaining student enrolment and attendance registers (Act, s 47(1)(g)(i) and (iv); Manual, s 3.6.2). 8. The school's position is that it is currently compliant with its obligations in relation to enrolment and attendance. However, it did not seriously challenge the findings in the reports of Inspectors Yates, Williams and Prideaux set out above. I accept those findings. 9. Mr Kendall explained some of the school's late attendance records, in his affidavit of 7 December 2021. He stated that he had arrangements in place with a number of parents for their children to undertake their morning prayers at home either from time to time or on an ongoing basis. He evidence was that these arrangements were not documented, because they were usually arranged by phone or in person. [74] Mr Kendall said he agreed to the arrangement only where a child would miss Jewish studies and not a class teaching the NESA syllabus. [75] 10. Ms Portelli expressed the view in her affidavit of 7 December 2021 that the SAS 2000 software system, used to record attendance and enrolment, needed replacing because it was outdated. [76] She outlined in that affidavit a procedure she had implemented for taking student attendance on a daily basis. [77] She stated that, if there was an unexplained non-attendance at the end of a week, the Principal or Principal's secretary would contact the student's parent or guardian and "identify if the Attendance Plan … is required to commence". [78] 11. Inspector Prideaux expressed some continuing concerns about the school's enrolment and enrolment documents in her affidavit of 21 December 2021. She noted that the school's enrolment register spreadsheet dated November 2021 was not the consolidated enrolment register required under s 3.8 of the Manual. It included only three of the nine required fields of information even though the school's new enrolment policy correctly identified the information to be maintained in the register. It did not identify a student's destination if they ceased their enrolment at the school. Schools are required to notify the NSW Department of Education if they do not know the school destination of a student after they leave the school. In Inspector Prideaux's opinion, the school's lack of follow up put the welfare of such students at risk. Whilst Inspector Prideaux considered the new attendance policy to be an improvement, in her view it did not reflect, in every aspect, the School's practice for recording and maintaining student attendance records. 12. Inspector Williams also made some criticisms of the school's attendance and enrolment records in her affidavit of 21 December 2021. She stated that the school's document titled "Admissions Register" identified 61 students as being enrolled as at 30 March 2021, including three students in Year 10. At the 30 March 2021 inspection, however, Mr Kendall had advised that there were no Year 10 students enrolled, and no teaching programs were provided for Year 10. Inspector Williams also observed that the Admissions Register was inconsistent with another document provided by the school as evidence of current enrolments. This second document identified 59 students enrolled at the time of the inspection and listed two students as being in Year 9 which the Admissions Register listed as being in Year 10. 13. Mr Kendall's evidence in February 2022 was that the Year 10 boys recorded in the Admissions Register had left to undertake rabbinical studies in Toronto, Canada. Mr Kendall stated that he had not removed them from the Enrolment Register, as he thought it possible they might return to Sydney. [79] 14. Ms Portelli annexed to an affidavit affirmed on 11 February 2022 an updated enrolment register which included the location of withdrawn students. At the hearing, under cross examination, Ms Portelli agreed that there was no single enrolment register including all the information required under the Manual. [80] She accepted that the SAS 2000 software used to record enrolments and attendances was outdated, that it needed to be replaced and that the current records were inaccurate. [81] She also agreed that the use of the SAS 2000 software has ongoing risk for the safety and welfare of the students. [82] The enrolment register did not contain the family details of the students, which were located elsewhere (in family summary reports). However, for some students, the family summary reports did not contain the parents' contact details or the child's address. Ms Portelli also agreed that the enrolment register did not contain records for students whose enrolment ended before 2021, contrary to the requirement in the Manual that the register be retained for at least five years before archiving and contrary to the school's policy. [83] 15. Mr Kendall was cross examined about his affidavit evidence concerning attendance and enrolment. When asked whether students who had gone to Canada and who were enrolled in a rabbinical college there should no longer have been recorded as being enrolled at the college, he did not agree with the proposition. Rather, he said that those students were not being marked as attending school even though they remained enrolled. Mr Kendall said that it would not have been appropriate to withdraw the children's enrolment once they left Australia because of the uncertain times of COVID. [84] 16. The school's policies for attendance and enrolment have been improved by Ms Portelli. However, as Mr Portelli acknowledged, the school is not compliant with the requirements of the Manual. 17. The requirement in s 3.8 of the Manual that a child's name and address and parent or guardian details be contained in one register, with other relevant information, is important. This ensures, among other things, that a parent or guardian can be contacted quickly in an emergency. The school's way of keeping the register is non-compliant and has a tendency to confuse. Additionally, details cannot always be found in relation to the student in question in that student's record; sometimes it is necessary to look at the record of a sibling to find relevant contact details. Some of the records are inaccurate. 18. The applicant submitted that the use of the outdated SAS 2000 software could be explained by the financial outlay involved in updating the software when the school's ongoing registration was in doubt. That is not an adequate reason for not complying with the Manual and with the registration requirements, particularly where, as Ms Portelli accepted, this creates a risk for the safety and welfare of the students. 19. Mr Kendall's view that it was acceptable for certain students to come late to school, under an undocumented agreement with him, is inconsistent with the school's policies and unsatisfactory in terms of ensuring student safety. It is not a complete answer to say that those students are not missing any lessons teaching the curriculum. Mr Kendall has not explained how the school ensures that the students who are permitted to arrive late nevertheless arrive in time for their lessons on the curriculum. 20. Additionally, Mr Kendall's view that it is acceptable to record students as being enrolled when they are in another country enrolled in another course is inconsistent with the school's obligations. The enrolment register is required to be up-to-date and accurate. As was put to Mr Kendall in cross examination, the number of children enrolled at a school affects the school's funding. Further, it is important for a school to identify accurately the students who are enrolled at a school, as the school has obligations in relation to their safety, welfare and education. 21. For the reasons given above, I am satisfied that the school is not compliant with the registration requirement in s 47(1)(g)(iv). Quality of student learning 1. In deciding whether the requirements for registration will be or are being complied with at or in relation to a non-government school, NESA is to have regard to matters relating to the quality of student learning (Education Act, s 47(2)). The Tribunal is also to have regard to such matters when conducting its review of NESA's recommendations. However, matters relating to the quality of student learning are not directly relevant to the requirements in s 47(1)(g)(ii), (iii) and (iv). Whilst it may be that the quality of student learning has some relationship to whether a school environment is supportive, it does not bear upon whether the school is complying with its legislative obligations. Curriculum (s 47(1)(j)) 1. A registered non-government school such as Yeshiva College must comply with the requirements set out in Part 3 of the Act relating to, relevantly, the minimum curriculum for a school providing primary education and secondary education to Year 10. 2. Section 8 of the Act provides for the minimum curriculum for primary education. The curriculum must meet a number of requirements including courses of study in each of the six key learning areas, courses of study in art and music and courses of study in each key learning area are to be based on, and taught in accordance with, a syllabus developed by NESA and approved by the Minister (Act, s 8(1)). 3. Section 10 of the Act provides for the minimum curriculum for secondary education. The curriculum for children in Years 7 to 10 must meet a number of requirements including the provision of courses of study in 6 out of the 8 key learning areas for secondary education, courses of study in a key learning area are to be appropriate for the children concerned having regard to their level of achievement and needs and courses of study in a key learning area are to be based on, and taught in accordance with, a syllabus developed or endorsed by NESA and approved by the Minister (Act, s 10(1)). 4. The Manual provides that primary schools and secondary schools are to keep timetables for each class showing the allocation of time and teachers for each key learning area, the scope and sequence of learning / units of work in relation to NESA syllabus outcomes, an assessment plan and teaching programs. [85] Schools are required to demonstrate evidence of alignment between NESA syllabuses and the school's curriculum documentation. [86] 5. In 2019, Inspector Yates identified what she described as "serious concern" in relation to compliance with requirements for the primary and secondary curriculum. The issues she identified at the inspection on 5 April 2019 included that: 1. timetables did not show the allocation and time and teachers for each key learning area; 2. curriculum documentation showed little alignment between the documented timetables and the actual teaching time provided in each key learning area, and it was unclear if all students were delivered sufficient hours to achieve syllabus outcomes; and 3. scope and sequence documents were inconsistent with the teaching programs. 1. Inspector Yates noted some improvement in the curriculum documentation provided at an inspection on 30 July 2019, but concerns remained. 2. Inspector Williams' inspection report of March 2020 also identified "serious concern" in relation to the primary and secondary curriculum. She noted that it was not clear that the school's August 2019 plan to address curriculum concerns had been implemented. The Inspector found minimal evidence of the previous concerns being addressed. The timetables provided contradicted one another, scope and sequence documents were inconsistent with the units of work and units of work were not provided for all key learning areas for each year of schooling. 3. Inspector Perkins' internal review report noted that no information, beyond the School's 14 September 2020 response to Inspector Williams' report, was provided to address the concerns about curriculum in that report. The Inspector found that concerns remained about the school's compliance with the registration requirements for curriculum. 4. In a report dated 29 April 2021, Inspector Williams found the school to be non-compliant with the curriculum requirements. She found that the school had failed to demonstrate that the required curriculum is delivered to students. Some of the issues she identified included that: 1. the school did not provide evidence of delivering music for any year of schooling, music being a mandatory component of the curriculum; 2. there was little evidence that PE was being delivered in a systemic way at the school; 3. the school's timetables do not correlate with scope and sequences and teaching programs for each class; 4. Curriculum documentation shows little alignment between the documented timetables and the teaching time identified in the units of work and work samples provided for each key learning area. 1. She found that the school did not provide evidence that sufficient time is provided to the mandatory curriculum required for registration. The inspector also observed a poor standard of teaching and student engagement in learning at the School and poor quality curriculum documentation that was concerning for the schooling education of Yeshiva College's students. 2. When providing her internal review, Inspector Prideaux reported that at an inspection on 17 June 2021, it was apparent that the school had made minor improvements in some areas relevant to curriculum. However, many of the concerns noted in Inspector Williams' original report remained. 3. Inspector Prideaux found that, based on the information available, the school had not demonstrated compliance with the registration requirements relating to providing the minimum curriculum of the Act for primary and secondary education. She made the following comments: The internal review process found that insufficient time is provided for the teaching of NESA syllabuses, there are anomalies across different elements of the curriculum, it is unclear that the planned curriculum is delivered, student work samples show little relationship to learning related to NESA syllabuses and there is limited evidence of student work samples that relate to learning associated with NESA syllabuses. Given these findings, together with the School's history of ongoing compliance issues in this area, there is concern that the School's proprietor lacks the capacity to become compliant and maintain independent and systematic compliance in this area. 1. Inspector Prideaux considered matters relating to the quality of student learning when deciding whether the registration requirements will be or are being complied with, as required by s 47(2) of the Act. She considered that a quality standard of teaching was not demonstrated. Having regard to a number of inconsistencies in the curriculum, she found that the school was not facilitating quality student learning in relation to the curriculum required by the Act. 2. I accept the findings of Inspectors Yates, Williams, Perkins and Prideaux in their respective reports concerning the school's curriculum documentation. Those findings are supported by the documentary evidence before me. Further, Inspectors Williams and Prideaux were not challenged on many of their findings when cross examined. Each gave thoughtful and considered evidence. They are both experienced inspectors and educators and their evidence is broadly consistent. 3. Mr Kendall gave affidavit evidence that, since the internal review report, he had reviewed and updated Yeshiva College's curriculum documents. [87] He provided those documents and student work samples from 2021 to the Tribunal. In terms of the quality of student learning, Mr Kendall expressed the opinion that lasting improvements in the quality of education took time and the investment of resources. He stated, however, that he had seen a significant improvement in the quality of education provided at Yeshiva College in the past two years (prior to December 2021). 4. Mr Kendall accepted in cross-examination that when he arrived at the school in February 2020 the curriculum needed a lot of work. [88] He also acknowledged that there was still work in process in relation to the documents presented to NESA at the March 2021 inspection and that there were still "outstanding items." [89] After receiving the internal review report, Mr Kendall reviewed and updated Yeshiva College's curriculum documents. [90] 5. NESA submitted that one curriculum issue that it had consistently raised with the school is the repetition and lack of differentiation of learning between year levels. [91] Differentiation is particularly important for composite classes, and where (as at Yeshiva College) composite classes sometimes involve children in different stages. One of the examples relied upon by NESA of lack of differentiation is the scope and sequence for History Stage 4 in Term 4, 2021. 6. Mr Kendall annexed to his affidavit of 7 December 2021 his teaching programs for Stages 4 and 5 for History (for his Years 8 and 9 composite class). He stated in his affidavit that, when he conducted the first lesson in Term 4, he identified gaps in the knowledge of the students. [92] 7. The first teaching program Mr Kendall annexed to his affidavit is headed "History Stage 4 Years 7 & 8 – Ancient History; The Ancient World; Term 4, 2021" (the Stage 4 Program). [93] The second program annexed is headed "History Stage 5 Year 9 & 10 Modern History; The Making of the World; Term 4 2021" (the Stage 5 Program). In the overview of the unit for the Stage 4 program, it is stated: "Students investigate ancient history from the time of the earliest human communities to the end of the ancient period." The "key inquiry questions" in the unit, however, are focused upon modern history: 1. How did historical forces shape the modern world and Australia, but also the motives/actions of past individuals/groups and the causes of events/developments of past societies over time. 2. Howe did 'Tikkun Olam' Impact on how reputable Australian Jews influenced on Australian society? 3. What have been the legacies of ancient societies? 1. The first sequence is headed "1st week/ Prior Knowledge / Pre testing that led to change in unit direction". It states: "To ascertain Prior Knowledge for the settlement of Australia and first fleet, we did [sic] a "Chalk & Talk and Mind map on the board on the following Inquiry questions". The listed questions relate to the settlement of Australia. This is followed by a comment in red: "DK – 26/10/21 – After this lesson I observed a real lack of prior knowledge / understanding on the settlement of Australia and the First Fleet that will be essential to teach this units. I will now look at how we can interlink the impact of the Industrial Revolution, to a rising divide between rich-poor in urban cities and the convict colony of Australia / displaced peoples (European Jewish population)." The second, third and fourth sequences make no mention of the Ancient World but refer instead to the factors that shaped the modern world and Australia, the original sketch of the first synagogue in Sydney and the factors that shifted large amounts of people to European colonies around the world. 2. There was no explanation in the teaching materials of why Mr Kendall would have sought to ascertain the students' prior knowledge of modern Australian history in a topic concerning the Ancient World. 3. The Stage 5 Program stated in the Overview of the Unit that the Stage 5 curriculum provides a study of the history of the making of the modern world from 1750 to 1945. The overview refers to that period as being one of industrialisation and involving the colonisation of Australia. The first, second, third and fourth sequences in this topic are identical to those in the Stage 4 Program, with identical comments in red. 4. Mr Kendall accepted in cross examination that when teaching the curriculum topic concerning the ancient and modern world from 60,000BC to AD650, he actually taught modern history relating to the settlement of Australia. [94] Ms Ronalds SC had the following exchange with Mr Kendall: "Q. And what I'd suggest to you is that while the headings related to the ancient and the modern world in that period you actually taught modern history relating to the settlement of Australia, do you recall that? A. That is correct. Q. So it didn't relate to what the heading said? A. No, no, what it was that the heading was obviously relating to the migration and the civilisation and how that's impacted upon Australia. Now, obviously the large Jewish population we were also able to explore the Jewish influence on Australia as a colony, as a settlement, to the point where one of our children found out that their parents were one of the first kind of craft store owners on the goldfields. So it was a very ...(break in recording)... topic. But obviously with the outcome, trying to make it relevant to these students. Q. But that wasn't the 60,000 BC to AD 650, was it, that wasn't the period that the curriculum required you to teach. As I recall the settlement of Australia was somewhat - by white people was somewhat later than that? A. It certainly was but in regards to why is that relevant of their lives in regards to context of that it was able to be integrated to what they actually know at the moment. Q. But you're meant to be teaching 60,000 BC to AD 650, do you agree, that was what was required in the syllabus? A. Yeah and it was covered, not as extensively as some of our other focus areas but it was covered." 1. Mr Kendall later explained that "what we did is we used the Australian settlement or the gold rush as a great setting in order to use the introduce the ancient civilisations because for a lot of these students there was a lack of prior knowledge." [95] Ms Ronalds SC then suggested to Mr Kendall that this indicated that the students had not been taught the syllabus properly, because Australian settlement is part of an earlier stage of the syllabus. His response was: "Well, that was some years ago so I can't comment, sorry, because stage two - no, but stage two is I know for a fact because I taught it is very much on the first fleet and early settlement on stage two." [96] When pressed as to how the teaching program reflected the teaching of ancient history, given that the teach program referred to modern history, Mr Kendall replied: "It's modern history that has incorporated ancient history outcomes and put in a context as I said before." [97] 2. I accept NESA's submission that this example illustrates that the school is not complying with the requirement to teach the correct curriculum to all students. Despite the justifications Mr Kendall gave for his conduct, he was not teaching the Year 8 children in his composite class the Year 8 curriculum. That would have involved teaching them Ancient History. Instead what he did was to teach the Year 9 curriculum for history to both Year groups who were in the same class at the same time. That demonstrates, as NESA contends, that the school was not providing the required differentiation. It is all the more remarkable that Mr Kendall advanced this in his affidavit as an example of illustrating a teaching strength, presenting it as demonstrating that he had amended the teaching program to reflect the gaps identified in the knowledge of students. 3. Other examples relied upon by NESA supported its position about repetition and lack of differentiation in the curriculum. For example, the school's curriculum documentation shows that teaching activities and instructions in the Music teaching program are identical for all Stages, as are the songs to be studied each week. The applicant submitted that differentiation was achieved through annotations of the program. It was said that, whilst principal, Mr Kendall instigated a program in connection with the music classes whereby teachers are required to use detailed annotations to assess student performance as a means of ensuring appropriate development of students' progress and performance. [98] However, as NESA pointed out, this program did not achieve sufficient differentiation between stages. The annotations for Stages 1 and 2, for example, are almost entirely the same. 4. NESA submitted that there was no evidence that the school delivered the digital technology syllabus to students, as it was required to do. [99] Ms Feldman's evidence in February 2022 was that the teacher who was engaged to develop the Digital Technologies curriculum, is no longer employed by the school. [100] Mr Kendall accepted that there were times in 2020 and 2021 when the school had not delivered the digital technology syllabus to students. [101] His evidence and that of Mrs Feldman did not give the Tribunal any confidence that that syllabus was now being delivered as required. 5. Mr Kendall also gave evidence that a teacher who was new to Yeshiva College in 2021 had delivered the previous year's teaching program to students in a composite class and this was not discovered for four and a half weeks. [102] He accepted that this should have been picked up much earlier and explained that the mistake occurred because the new teacher accessed the school's programs, which were on a Google drive, by means of typing the subject name into the search engine without also typing in the relevant year. [103] In his affidavit, Mr Kendall stated that it was possible that the students repeated content from the previous year (but did not appear to have checked). [104] When asked about this in cross examination, Mr Kendall said he could not comment on whether the teacher taught the group of students the same content as the teacher from the previous year had taught them. [105] 6. It is concerning that Mr Kendall took no steps to find out whether the new teacher who taught students the wrong material taught them curriculum they had been taught the year before or not. The school submitted that the fact that Mr Kendall picked up that the wrong curriculum was being taught showed that its systems were working. Whilst this might be true, to some extent, it took over four weeks for this to occur. It is alarming that the school left it to a new teacher to find the teaching program on a Google drive, through use of a search engine, with no evidence that the teacher had been trained how to use the search function, and no evidence of anyone providing timely oversight in respect of the teacher's new teaching duties. 7. Mr Kendall has now, of course, left the school, so that his leadership and teaching practices might be considered to be of less relevance. However, the applicant put him forward as a witness supporting its application. It was submitted for the school that solid work was undertaken in relation to the development of the curriculum by Mr Kendall. [106] It was also submitted that Mr Kendall is "an educator with significant experience in the education sector who displayed during his evidence before the Tribunal an obvious commitment to and passion for children's education." [107] The school's position is that the hiring of Mr Kendall as principal exhibited a fundamental change of attitude towards compliance. [108] Accordingly, I have treated his evidence as being supported by the applicant. 8. In an aide memoire, the applicant made submissions concerning its compliance with the curriculum requirements. It relied upon updated timetables which it said demonstrated that NESA-accredited teachers were teaching all classes. It made other submissions in response to criticisms made by NESA and its witnesses, including that, although there may be some issues with the documentation of differentiation, the student work samples provided examples of differentiation. The applicant also submitted that Yeshiva College's provision of integrated classes did not breach the registration requirements. In response to the criticism that there are inconsistencies or a lack of alignment between the School's scope and sequences, units of work, registered programs, assessment and student work samples, Yeshiva College submitted that alignment of curriculum documents is but one indicator of the curriculum documents' validity. 9. I accept that there have been some improvements in relation to the school's compliance with curriculum requirements in the areas of timetabling and a greater number of hours spent on the curriculum. However, the other matters raised do not satisfy me that the school is complying with the registration requirements in the area of curriculum. Student engagement and quality of learning 1. It is necessary to have regard to matters relating to the quality of student learning when considering whether the registration requirements will be or are being complied with at a school (Act, s 47(2)). Such matters include the standard of teaching of courses of study provided at the school and student engagement in learning at the school (Act, s 47(2)). 2. Ms Curtin submitted, for the applicant, that the small class sizes at Yeshiva College facilitated student engagement in learning. She also submitted that the level of student engagement can be increased by teaching what students are interested in, and this was done through integrating Jewish religious studies into the curriculum. In addition, the school's results in NAPLAN in 2021 indicated good student engagement and reflected well upon the quality of student learning. [109] 3. I accept that small class sizes and the integration of Jewish studies into the curriculum may increase student engagement at Yeshiva College. I also accept that the school's positive NAPLAN results from 2021 are a factor in support of Ms Curtin's submission about the quality of student learning. However, these things do not, in the context of the evidence as a whole, persuade me that the quality of student learning at the school is high. In her report on 30 March 2021, Inspector Williams observed "a poor standard of teaching and student engagement in learning at the School and poor quality curriculum documentation that is concerning for the schooling education of the School's students." [110] Inspector Prideaux reached a similar conclusion some months later. [111] I give their evidence some weight. The lack of alignment of curriculum documents and work samples is also an indication of a poor quality of the standard of teaching of courses of study provided at the school. Whilst there may be some positive engagement in student learning at the school, and whilst the NAPLAN results provide some evidence of reasonable student learning, I am not satisfied, having regard to the evidence as a whole, that the quality of student learning is high. Conclusion on curriculum 1. I find that the school has been non-compliant with the registration requirements for primary and secondary curriculum in s 47(1)(j) of the Act since at least 2019 and remains non-compliant. Proper governance and responsible persons (s 47(1)(b1) and (b)) 1. It is a registration requirement that each responsible person for the school is a fit and proper person (Act, s 47(1)(b)). The Manual provides that the proprietor of the school must ensure that each responsible person is fit and proper (s 3.9.1). The proprietor must have and implement documented policies and procedures in relation to the requirement for the school's responsible persons and governing body to be fit and proper with specific reference to certain matters (Manual, s 3.9.1). These include that each responsible person for the school signing a fit and proper statutory declaration prior to commencing as a responsible person for the school and at least on an annual basis while the person continues to be a responsible person for the school, including as to whether the person has ever become bankrupt. 2. It is also a registration requirement that policies and procedures for the proper governance of the school are in place (Act, s 47(1)(b1)). The responsible persons for a non-government school are accountable for proper governance of the school and for meeting this requirement (Manual, s 3.9.3). Each responsible person for a non-government school must avoid situations in which his or her personal interests may conflict either directly or indirectly with decisions made by the governing body, whether the conflict is actual, perceived or potential (Manual, s 3.9.3.2). 3. NESA submitted that the school had not ensured that Mr Segelman was a fit and proper person in accordance with s 47(1)(b) of the Act and that it does not have policies and procedures for the proper governance of the school which are implemented in accordance with s 47(1)(b1) of the Act. [112] Responsible persons 1. Any person involved in the management of a school is a responsible person (Act, s 3(1)). Mr Segelman commenced at the school in 2019 as its business manager, working remotely from Los Angeles. [113] When he commenced, Rabbi Slavin did not know that a responsible person could include anyone involved in the management of the school. [114] Under cross-examination, Rabbi Slavin said that Mr Segelman had taken on more and more responsibility since August 2019 until he became more involved in assisting the rabbi than the manager of the school. [115] At a meeting on 20 January 2021, Rabbi Slavin said to Inspector Williams that Mr Segelman "probably should be" a responsible person for the school. [116] However, it was not until 18 November 2021 that the school identified Mr Segelman as a responsible person. [117] Mr Segelman undertook training as a responsible person for the first time that month. [118] 2. The circumstance that Rabbi Slavin, being chairperson of the Board, was not aware in 2019 that a responsible person includes any person involved in the management of a school, is indicative of a failure to comply with his obligations as a responsible person. The Manual provides that proper governance requires the responsible persons for a school to have in place structures, policies and procedures for governance, leadership, authority, decision-making, accountability and transparency (s 3.9.3). It is difficult to see how the chairperson of the Board could implement such policies and procedures effectively without an understanding of the identity of the school's responsible persons. Further Rabbi Slavin and other board members could not implement policies and procedures for the ongoing professional learning of the school's responsible persons as required by s 3.9.3.4 of the Manual, without first knowing who those persons were. As Rabbi Slavin has been the chairperson of the Board since 2012, there were at least seven years in which he had been unable to identify correctly the responsible persons for Yeshiva College. 3. In its opening submissions, the applicant stated that it readily acknowledged that Mr Segelman ought to have been identified as a responsible person for the school when he was appointed to the role of business manager in 2019. [119] However, that position did not appear to be shared by Rabbi Slavin or by Mr Segelman himself. 4. Rabbi Slavin was put on notice of NESA's view that Mr Segelman was a responsible person in the internal review report in July 2021. He had already recognised that Mr Segelman was probably a responsible person in January 2021. Rabbi Slavin, however, failed to take any steps to notify NESA that Mr Segelman was a responsible person, or to ask him to make a statutory declaration. 5. Mr Segelman's own view was that it was unclear whether he was involved in the management of the school or not. [120] However, he conceded that from August 2019 he regularly attended board meetings by video link and participated in meetings between the school and NESA by video link. [121] He gave evidence that he filled out the responsible persons form only after the applicant's barrister had suggested to him that he may be a responsible person. [122] 6. NESA submitted that the late notification of Mr Segelman's status as a responsible person on 18 November 2021, more than two years after he commenced as business manager and more than five months after NESA raised a question about his status in the 2021 internal review report, indicated a failure of governance. The applicant relied in response upon Rabbi Slavin's evidence that Mr Segleman's role had incrementally increased over time. It is not plain whether this submission was made to suggest that he may not have been a responsible person when he commenced as business manager (contrary to the applicant's position in opening submissions). 7. The evidence establishes that, as the school's business manager, and as a person who participated in board meetings from the outset, Mr Segelman was involved in the management of the school, and thus a responsible person, from his appointment. The failure of the Board members generally, and of Rabbi Slavin in particular, to recognise that Mr Segelman was a responsible person, caused the school to be non-compliant with the registration requirements for responsible persons. As a result, Mr Segelman did not sign a fit and proper statutory declaration prior to commencing as a responsible person for the school, as required by the Manual, nor did he then sign such a statutory declaration annually. Further, in circumstances where the Board does not know who the school's responsible persons are, it is impossible for the school to comply with its obligations to implement policies and procedures concerned with maintaining information to demonstrate that the school's responsible persons and governing body have the experience and expertise to administer a school that provides an education for school students (Manual, s 3.9.1). 8. The applicant submitted, in response to NESA's concerns that the responsible persons, other than the Acting Principal, did not appear to have any experience or expertise in secular education or in administering a school, that the Manual requires the responsible persons collectively to have such experience. It said that Mrs Feldman has that experience and that, previously, Mr Kendall did so. Mrs Feldman gave evidence that she had agreed to take on the role of acting principal only on the basis that she would be supported in the role by a curriculum and compliance team, because she did not consider that by herself she was sufficiently qualified, experienced or otherwise capable of ensuring the school complied with its registration requirements. [123] The other responsible persons for Yeshiva College lack experience in education in schools. In these circumstances, I am not satisfied that the school is complying with its obligation to implement policies in relation to the requirement for the school's responsible persons to be fit and proper with specific reference to maintaining information to demonstrate that the school's responsible persons and governing body have the experience and expertise to administer a school that provides an education for school students (Manual, s 3.9.1). 9. On 1 December 2021, Mr Segelman gave the school a fit and proper person declaration in which he disclosed that he had twice been bankrupt, the second time in May 2021. [124] When Rabbi Slavin was asked at the hearing whether he was aware of Mr Segelman's bankruptcy in May 2021 prior to receiving the fit and proper person declaration, the rabbi replied, "Not in full detail." [125] However, he later accepted that he had become aware of the May 2021 bankruptcy in discussions with Mr Segelman as a friend, around the time that it occurred, and also that he was aware that Mr Segelman had lost his home. [126] Mr Segelman's evidence was that he mentioned his bankruptcies to Rabbi Slavin "quite frequently" and that Rabbi Slavin "was very familiar and continues to be very familiar with my situation and of the bankruptcies." [127] Mr Segelman's bankruptcy was not discussed at any board meeting. [128] Rabbi Slavin accepted in oral evidence that the board failed to ensure that the school's responsible persons were fit and proper. [129] 10. Rabbi Slavin's failure to report Mr Segelman's bankruptcy to the other board members promptly or at all, and his failure to cause the board to consider whether Mr Segelman remained a fit and proper person in light of his bankruptcy, constituted a breach of the proprietor's obligation to ensure that each responsible person is fit and proper. Rabbi Slavin appeared to be completely unaware of his obligation to act on the knowledge of his friend's bankruptcy. 11. When Mr Segelman gave evidence, he said he was still the school's business manager although he had handed in his resignation and "scaled back significantly" his activities. [130] After receiving notification from NESA that Mr Segelman was not a fit and proper person, Rabbi Slavin had asked him to stay on as business manager until the end of the financial year and Mr Segelman continued to be paid a monthly consultancy fee. [131] In these circumstances, there must be a real doubt as to whether this was properly characterised as a decision to keep Mr Segelman at the school as a responsible person, even though he was not fit and proper. As business manager, even with scaled back activities, Mr Segelman would appear to be taking part in the management of the school. In any event, it is an extraordinary decision to make in circumstances where NESA had declared him not to be fit and proper. 12. The evidence clearly establishes that the school has failed to implement its policies and procedures in relation to the requirement for its responsible persons to be fit and proper (Manual, s 3.9.1) and is not complying with the registration requirement in s 47(1)(b) of the Act. Financial management 1. One of the aspects of proper governance is sound financial management. Rabbi Slavin gave evidence that, in the role of chairperson of the Yeshiva College Board, over the last nine years, he had taken on the financial management of the school and the management of its governance. [132] 2. The total Commonwealth and State grants reported in the school's annual report to NESA (just under $900,000 in 2019, comprising $376,112 in State recurrent grants and $513,307 in Commonwealth recurrent grants) [133] was different from the amount of the grants included in its annual financial statements (about $1.26 million in 2019 and $774,000 in 2020). [134] Rabbi Slavin was unaware of this until it was pointed out to him in cross-examination and he was unable to explain the discrepancy. [135] 3. In re-examination, Ms Curtin showed Rabbi Slavin a summary of financial information from the 2018 report which showed the figures from 2018 to be exactly the same as those from 2019. [136] Rabbi Slavin agreed that it was likely that an error had been made in the 2019 report, commenting that it seemed like the information from the 2018 report had "been slotted in and copied and pasted in the wrong place." [137] 4. There were other inaccuracies in the accounts. Mr Segelman stated in his affidavit that he had incorrectly been referred to as a director in the 2019 audited financial accounts. [138] This error was apparently not picked up by Rabbi Slavin or any other member of the Board, even though Rabbi Slavin must have been aware that Mr Segelman was not a director. 5. The school's responsible persons are not implementing policies and procedures for the proper governance of the school in the area of financial management in a transparent or an effective manner. The unexplained discrepancies between the amount of grants shown in the school's annual report to NESA and the amount included in the applicant's annual financial statements are indicative of a lack of care and effective oversight on the part of the Board. That inference also arises from the inadvertent inclusion of 2018 figures in the 2019 report. Both of these errors were identified by NESA, and not by the Board. 6. Governance issues also arise in respect of the IJL Service Agreement. 7. The IJL Service Agreement, dated 1 January 2016, was signed by Rabbi Slavin and another director on behalf of the applicant. It provides that IJL (referred to in the agreement as "the Supplier") will provide the following services to the applicant (referred to in the agreement as "the Company"): • provide the services of qualified religious practitioners and high school, primary school, kindergarten and play group teachers to teach students enrolled at the school operated by the Company (School), such services to include: o curriculum design and planning in accordance with all NSW Department of Education requirements and other Legal Requirements; o face to face teaching of students, and all preparation for such teaching; o supervision of students at School, after-School, prior to School and weekend activities (whether or not at a Site); and o reporting to the Company, the principal of the School from time to time and parents of School students; and • assist in the in the preparation of marketing and School-promotional materials and activities. 1. The applicant agreed to pay the "Price" for the services. The "Price" was defined as a monthly amount equal to: • the cost to the Supplier of employing the Authorised Personnel for the purposes of providing the Services in accordance with this Agreement during that month; and • the Supplier's other costs of complying with its obligations under this Agreement during that month. 1. Pursuant to the IJL Service Agreement, IJL provided to the applicant religious studies teachers and NESA accredited teachers who were "qualified religious practitioners" (as that term was used in the IJL Agreement). [139] The Acting Principal Mrs Feldman (a NESA-accredited teacher) was supplied by IJL [140] but the other "teachers" supplied were not accredited (even though they were described by the school as Jewish studies teachers). 2. The 2019 profit and loss statement showed that $798,902.26 was paid in 2019 for "IJL Rabbinical teaching staff" and that $907,646.59 had been paid for those staff in the year ended 31 December 2018. [141] The 2020 profit and loss statement showed that $170,465.88 had been paid for IJL Rabbinical teaching staff in 2020. [142] 3. Rabbi Slavin said, in response to a question from Ms Ronalds SC, as to whether the school was using a significant portion of its Commonwealth funding to fund religious educators, that he was "not really sure that that's the case." [143] He referred to other funding sources of the school. [144] 4. Rabbi Slavin was asked questions about the accounts. The 2020 Financial Statements are contained in a report. The report includes a directors' declaration, signed by Rabbi Slavin, stating that the financial statements present fairly the applicant's financial position as at 30 December 2020. [145] Those statements show that the applicant received fundraising income of $402,044.17 in 2019 and grants of $1,260,411 in that year. [146] In the same year it paid $798,000 for IJL Rabbinical teaching staff and $358,020 for child care, which Rabbi Slavin explained was for before and after school care. [147] Rabbi Slavin conceded that the fundraising income was not sufficient to pay the Rabbinical teaching staff. [148] 5. Rabbi Slavin was unable to answer many questions about the accounts. He did not have a detailed understanding of those accounts. As submitted by Ms Ronalds SC for NESA in closing submissions, "he could provide no explanation for errors or anything that he recognised as chair of the board as carrying a responsibility for the contents of financial reporting." [149] 6. The figures provided by the school in its annual reports and financial statements indicate that some of the Commonwealth and State funding it receives is being used to pay IJL for non-NESA accredited Jewish studies and, or alternatively, that it is being used to fund out-of-school care. If I am wrong and that is not the case, there is a lack of transparency about how that funding is being used and the responsible persons who gave evidence were unable to explain this. 7. The applicant's entry into the IJL Service Agreement and the lack of transparency created by that agreement, in circumstances where the Board has not demonstrated any awareness of the problematic issues that raises or taken steps to address those issues, shows a lack of accountability on the part of the school's responsible persons for proper governance of the school. The effect of the IJL Service Agreement is that the applicant is not the employer of many of its staff, including some of its NESA-accredited teachers. At present, it is not the employer of its Acting Principal. As Ms Ronalds SC submitted for NESA in closing submissions, the consequence of this is that Yeshiva College does not have the power to direct and control the work of its own principal. [150] 8. There are other consequences of this arrangement with IJL for the school's child protection obligations. As discussed above, s 9A(1) of the Child Protection (Working with Children) Act prohibits an employer from commencing employing, or continuing 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. That provision does not apply to a company who is not an employer of a person. By operation of the IJL Service Agreement, the applicant has effectively removed itself from the operation of this provision in relation to the staff provided by IJL. Similarly, the reportable conduct scheme imposes obligations upon employees of relevant entities (including non-government schools) (see Children's Guardian Act, Part 4 and prior to that the Ombudsman Act, Part 3A (now repealed)). Whilst the term "employee" is broadly defined (Children's Guardian Act, s 16), the school's Board does not appear to have considered how the arrangement with IJL impacts on its child protection responsibilities and those of its staff members (including the staff members provided by IJL). 9. IJL does not have employment contracts in place for teachers who are contracted to teach at Yeshiva College. The IJL Service Agreement does not provide for Yeshiva College to exercise any control over the teachers supplied by IJL. This leads to an extraordinary situation where the terms of the contracts with the IJL-supplied staff are not transparent and the school has no legal capacity to direct or control them. As submitted for NESA, [151] the requirement for the school's responsible persons to have in places structures, policies and procedures for transparency is not being met (Manual, s 3.9.3). The IJL Service Agreement makes the arrangements for the employment of staff opaque. Conflict of interest 1. Rabbi Slavin gave evidence that IJL paid him, not by paying his salary, but by paying his bills including his rent, his children's school fees and other expenses, with an upper limit on the expenses which can be paid. [152] He said that it was the same for all teachers paid by IJL; they were not paid a salary but instead IJL paid their rent or mortgage, their credit card bills "and things of this nature." [153] 2. Rabbi Slavin agreed with the proposition put to him in cross-examination that payments from the school were a significant source of income for IJL which helped pay his expenses. The following exchange with Ms Ronalds SC then occurred: Q. The school helps fund your pay or the payments made on your behalf as you now tell us for your rent, et cetera? A. Correct. Q. You're in a position to influence how the school spends its money in your role as chair of the board of Yeshiva College, you'd agree? A. I do. Q. And in your role as a director of IJL? A. Correct. Q. So that money that should be by its funding grant is spent on educating students to the NESA curriculum is then funded to another entity that is IJL, you'd agree? A. That is. Yes. Q. That includes paying you? A. That's true. 1. There is no record before the Tribunal of Rabbi Slavin signing any conflict of interest declaration in which he declared a conflict of interest between his role as director of Yeshiva College and IJL before 9 February 2021 and he could not recall whether he had signed such a declaration before. [154] Rabbi Slavin accepted that the board of Yeshiva College approved payments to IJL and that the payments from the school to IJL helped fund his expenses. [155] He also agreed with the suggestion made by Ms Ronalds SC that the payments from the school to IJL were used to pay his children's school fees (at Yeshiva College) and stated that "there is quite a bit of money that goes in a circle yes." [156] However, Rabbi Slavin was very reluctant to acknowledge, under cross examination, that there was any conflict of interest between his positions as director of IJL and director of the applicant. [157] His evidence was that he could not remember ever abstaining from a deliberation or decision to make payments to IJL. [158] 2. Mr Andrews, who attended Yeshiva College board meetings as an observer and who was a member of IJL's governing committee, accepted that there was a potential conflict of interest when he gave business or financial advice to the school. [159] That admission, although belated, provides a contrast with Rabbi Slavin's unwillingness to recognise his own conflict of interest. 3. I find that Rabbi Slavin has a conflict of interest when approving payments as chair of the Board to IJL and, significantly, had a conflict of interest when entering into the IJL Service Agreement on behalf of the applicant. The conflict is between his own personal interests in receiving financial benefits from IJL (which are provided by the applicant) and his responsibility as Board member to act in the best interests of the applicant and of the school. He did not identify this conflict of interest until 9 February 2021, notwithstanding that the conflict had existed for years. When giving evidence, he inconsistently resisted the proposition that he was subject to a conflict of interest. It may be inferred that he has participated in Board decisions to pay money to IJL instead of abstaining from such decision-making. 4. Rabbi Slavin has not complied with the obligation placed on each responsible person for a non-government school to avoid situations in which his personal interests may conflict either directly or indirectly with decisions made by the governing body (Manual, s 3.9.3.2). Further, the responsible persons of the school have failed to implement policies and procedures in relation to dealing with conflict of interest with specific reference to documented processes for an annual declaration by each responsible person for the school in relation to any actual, perceived or potential conflict; and for requiring each responsible person at formal meetings of the school's responsible persons to raise any actual, perceived or potential conflict with regard to items on the agenda for the meeting and for recording in the minutes of the meeting any conflict that is raised (Manual, s 3.9.3.2). Governance policies 1. There is little evidence that the responsible persons of the school have taken responsibility for adopting or implementing the governance policies of the school. 2. Rabbi Slavin gave evidence that he had relied heavily on Ms Portelli in terms of the school meeting the registration requirements around governance. [160] He accepted that the board had not approved any of the policies developed by Ms Portelli, including the governance policy and the child protection policy. [161] He rejected the proposition that the board had abdicated its responsibilities to Ms Portelli. [162] Rabbi Slavin then said that each policy made by Ms Portelli had come to the board, even though that was not recorded in the minutes. [163] 3. Rabbi Slavin did not know whether the school had a document identifying the roles and responsibilities of its responsible persons, or a code of conduct for responsible persons before Ms Portelli developed those documents. [164] That suggests that he and the other Board members have not been complying with the requirements of the Manual in this area for most of the school's history. When asked about the quality of the school's policy documents before Ms Portelli revised or replaced them, Rabbi Slavin said he did not "know how bad they were before she came." [165] He was not sure whether the school's related party transactions register was being audited before Ms Portelli came. [166] His evidence was that he left it to responsible persons to complete their own professional training. [167] When asked whether he agreed that issues relating to compliance with the registration standards had not been regularly discussed at board meetings, he replied "okay". [168] 4. I infer from this evidence that the school Board did not take steps to ensure that it had compliant governance policies and procedures prior to Ms Portelli's engagement. Nor did the Board take steps to ensure that it was implementing its governance policies and procedures effectively and in accordance with the Manual. 5. In her affidavit evidence, Inspector Williams identified a discrepancy between the board meeting minutes for meetings held in January, February and March 2021 which had been provided to her, and those which had been provided to Inspector Prideaux. [169] One version noted that conflicts of interest had been called for whilst one version did not. Rabbi Slavin explained in reply evidence that, at each of those meetings, he had taken the following steps which had not been recorded in the minutes: 1. tabled the register of conflicts of interest; 2. tabled the register of related party transactions; 3. tabled the current Annual Declaration for Responsible Persons; and 4. asked all board members whether they had anything to declare as responsible persons. [170] 1. He stated that, after reading Ms Williams' report of 29 April 2021, he asked Yossi Segelman to amend the minutes (after he had signed them) to confirm that the steps had occurred. [171] He accepted in cross examination that this was a very significant issue. [172] 2. The unilateral amendment of Board minutes, after they have been approved by the Board, is a very serious breach of the obligation of responsible persons to implement policies and procedures in relation to maintenance of records of governance decisions and actions made by the school's responsible persons, including minutes of formal meetings of the school's responsible persons (Manual, s 3.9.3.1). It means that the minutes cannot be relied upon as being accurate. 3. I am not satisfied that the school's training and induction obligations in respect of responsible persons are being met. 4. Ms Portelli has introduced training for responsible persons, presumably in order to demonstrate compliance with s 3.9.3.4 of the Manual. However, Ms Portelli's training for responsible persons was 45 minutes long. She agreed that that amount of time was insufficient to provide proper training. [173] Only Mr Segelman and Mrs Feldman were provided with induction for a responsible person, notwithstanding that this is a requirement for all responsible persons. [174] 5. The policies and procedures developed by Ms Portelli, including the governance policies and procedures, were not approved by the board. [175] Rather, they were approved by Mr Andrews, a board member. [176] However, Mr Andrews' evidence was that he did not have an in depth knowledge and understanding of each of the policies. [177] In response to NESA's submission that the conflict of interest policy does not appear to have been approved by the Board, the applicant relied upon evidence to the effect that conflicts arising in a meeting are declared in advance of the meeting. That however does not address the issue that the Board is not determining its own governance policies, but rather that the governance policy created by Ms Portelli is being put forward as being the school's policy, without the Board considering and adopting it. 6. Ms Portelli agreed with the proposition put to her in cross examination that the Board did not lead compliance in the school and that she was the only one who appeared to be across the compliance issues in a thorough manner. [178] I find that to be the case. However, Ms Portelli considered that there had been a change in the level of understanding and compliance in the responsible persons and leadership of the school, since she arrived at the school. [179] Whilst that may be so, the evidence demonstrates that this remains seriously deficient. 7. Inspector Williams' evidence is that the mapping information, sent to her by Mr Kendall on 3 March 2021, raised concerns that the School's responsible persons did not understand the requirements for registration. [180] I am satisfied, from hearing the evidence of the school's responsible persons, that that remains the case. Is Rabbi Slavin a fit and proper person? 1. NESA submitted in closing submissions that Rabbi Slavin is not a fit and proper person. I accept that submission. Rabbi Slavin's lack of understanding of the registration requirements and how to ensure that the school complies with them, his lack of appreciation of the conflict of interest to which he is subject, his inability to provide sound financial management of the school, his failure to take any action when he was told by Mr Segelman that Mr Segelman had been made bankrupt, and his willingness to change minutes which had been approved by the Board, combine to render him not a fit and proper person to be a responsible person for the school. Conclusion 1. For the reasons given above, I am satisfied that the school is not complying with the registration requirements in s 47(1)(b) and (b1) of the Act, or with the relevant provisions of the Manual, and that it has not done so for many years. Lack of compliance 1. As my reasons demonstrate, I am not satisfied that following requirements are being complied with at Yeshiva College: 1. the requirement in s 47(1)(b) of the Act (responsible persons); 2. the requirement in s 47(1)(b1) of the Act (proper governance policies); 3. the requirement in s 47(1)(g)(ii) of the Act (employment of persons in accordance with child protection legislation); 4. the requirement in s 47(1)(g)(iii) of the Act (policies and procedures ensuring compliance with notification requirements); 5. the requirement in s 47(1)(g)(iv) of the Act (enrolment and attendance register); 6. the requirement in s 47(1)(j)(i) and (ii) of the Act (primary and secondary curriculum). 1. I am positively satisfied that the requirements in s 47(1)(b), (b1), (g)(iv) and (j)(i) and (ii) are not being complied with. As for the requirements in s 47(g)(ii) and (iii), whilst I cannot be positively satisfied that they are not being complied with, I am not satisfied that the school is complying with them. 2. When determining whether the requirements for registration will be or are being complied with at or in relation to Yeshiva College, I have had regard to matters relating to the quality of student learning at the school. Those matters are discussed above. 3. I have not considered every registration requirement with which NESA contends the school is non-compliant. However, even if I were to find that the school was compliant with the requirements which I have not considered, that would not change my decision. Discretion 1. The Tribunal has a discretion, having found that the applicant is not compliant with several of the registration requirements, as to the recommendations it makes. Ms Curtin submitted that it should make a different recommendation from that made by NESA. 2. I accept NESA's submission that the school's approach to compliance has mainly been reactive and that this is a factor which tends against making a different recommendation. The evidence of the school's NESA compliance officer, Ms Portelli, was that her approach to compliance was (so far) mostly to respond to issues raised by NESA and that she was not engaged in proactive compliance. [181] She accepted that there were still areas of non-compliance at the school. [182] 3. The circumstance that the school's approach to compliance has been predominantly reactive means that the Tribunal cannot be satisfied of the school's capacity for effective, sustained and independent implementation of policies and procedures which ensure compliance with the registration requirements. Further, as Ms Portelli accepted, it is difficult to monitor implementation of policies and to engage staff in developing a compliance culture when there are constantly moving casual staff at a school. [183] The Tribunal cannot be confident that the school's current situation of having a high turnover of staff will change in the near to medium future. This is another factor pointing to the unlikelihood that the school will be able to comply with the registration requirements in the foreseeable future. 4. In the applicant's submission, a factor in favour of not recommending cancellation or non-renewal of the school's registration includes the attitude of Rabbi Slavin to the school's obligations to teach the curriculum and to comply with the law. Ms Curtin submitted that his evidence showed that he had an ongoing commitment to the school delivering the curriculum and an ongoing commitment to the school complying with the Act and the Manual. [184] Ms Curtin also submitted that the acting principal, Mrs Feldman, was obviously committed to the education and welfare of her students. [185] 5. For reasons given above, I do not consider Rabbi Slavin's attitude to be a factor in favour of not affirming NESA's recommendations. Rabbi Slavin failed for many years to ensure that the school complied with the registration requirements and was often slow to respond when NESA identified areas of non-compliance requiring attention. It may be accepted that Mrs Feldman is committed to the education and welfare of her students. However, she acknowledged that she was not sufficiently qualified, experienced or otherwise capable of ensuring the school complied with its registration requirements. 6. It was put in closing submissions for the school that there was evidence of systemic change within the school and a commitment to continuing along that positive compliance trajectory. [186] Ms Curtin submitted that the school had encountered a number of challenges, including with respect to finding and keeping staff members to lead the school and to assist with the development of its curriculum, and that the COVID-19 pandemic had had a significant impact. [187] 7. There has certainly been an increase in the degree of the school's compliance with the registration requirements, mainly due to the work of Ms Portelli, but others have also taken action to address the areas of non-compliance identified by NESA. However, the actions taken by the school are not sufficient to achieve compliance with all of the registration requirements or to provide any assurance that the school will be compliant, or substantively compliant, in the future. 8. The COVID-19 pandemic may have had some impact upon the school's operations and may have made it more difficult, at times, for the school to work towards achieving compliance. However, the pandemic alone does not explain the school's failure to address the areas of non-compliance effectively. 9. Inspector Prideaux expressed the view that the school's responsible persons and the school's leadership team do not have a demonstrated understanding of the fundamental requirements for school registration and what is required of the school's operation to comply with those requirements. [188] Inspector Williams gave evidence that, in her six years at NESA and the Board of Studies, she had never observed such a widespread and continuing failure by a school to address compliance concerns raised by NESA. [189] I give some weight to those opinions. As will be apparent from my reasons, I share Inspector Prideaux's view about the lack of understanding of the school's responsible persons. 10. The school's failure to comply with the registration requirements in the areas of the minimum primary and secondary curriculum is serious because it indicates that its students are not receiving the education they are required, by law, to be given. Section 4 of the Act provides that, in enacting the Act, Parliament has had regard to the principles that every child has the right to receive an education and that it is the duty of the State to ensure that every child receives an education of the highest quality (among other principles) (Act, s 4). That duty is reflected in the Act by the imposition of registration requirements for non-government schools. 11. My lack of satisfaction that Yeshiva College is satisfying the registration requirements in s 47(1)(g)(ii) and (iii) relating to child protection is also a strong factor in favour of exercising my discretion to confirm NESA's recommendations. Those registration requirements are designed to protect the safety and welfare of students. My lack of satisfaction that the school is complying with these requirements means that I cannot be confident that students' safety and welfare are not thereby being placed at risk. Further, I am satisfied that the school's lack of compliance with the requirements in the Act and the Manual concerning the maintenance of a student enrolment and attendance register places students' safety and welfare at risk. 12. Finally, the school's non-compliance in the area of governance is significant and long-standing. The circumstance that Rabbi Slavin is not a fit and proper person is a strong reason to confirm NESA's recommendations. Further, the applicant is not implementing policies with reference to maintaining information to demonstrate that the school's responsible persons and governing body have the experience and expertise to administer a school that provides an education for school students (Manual, s 3.9.1). In these circumstances, I would not exercise my discretion against recommending cancellation or non-renewal of the school's registration. 13. The parties appeared to be of the view that the Tribunal had the power to recommend that conditions be imposed on the school's registration as an alternative to confirming NESA's recommendations for cancellation and non-renewal. It may be that the Tribunal has power to do this under s 108(1)(b) of the Act. However, it is not necessary for me to decide this, as I would not impose conditions even if I had the power to do so. In my view, for the reasons given above, the correct and preferable decision is to confirm NESA's recommendations (Act, s 108(1)(a)). Orders 1. I make the following orders: 1. The respondent's recommendation that the registration of Yeshiva College, Bondi not be renewed is confirmed. 2. The respondent's recommendation that the registration of Yeshiva College, Bondi be cancelled is confirmed. ********** 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. Registrar Endnotes 1. Section 58 documents, page 4716. 2. Segelman Affidavit, pages 18-19. 3. Transcript, 9 June 2022, page 239. 4. Second Portelli Affidavit at [4]. 5. First Portelli Affidavt at [48]. 6. Transcript, 9 June 2022, page 258. 7. Second Portelli Affidavit at [19]. 8. Amended tender bundle, page 48. 9. Transcript, 9 June 2022, pages 227-228. 10. NESA's submissions filed 25 February 2022 at [25]. 11. NESA's submissions filed 25 February 2022 at [31]. 12. NESA's submissions filed 25 February 2022 at [18]. 13. Applicant's submissions dated 11 February 2022 at [92]. 14. Applicant's submissions dated 11 February 2022 at [5]. 15. Manual, page 5; Stan Browne Affidavit, page 39. 16. Williams Affidavit, JW4. 17. Section 58 documents, Tab 3-B, p 36. 18. Williams Affidavit, Annexure JW-3. 19. Section 58 materials at Vol 1, tab 3B, page 36. 20. Williams Affidavit [60]-[61]. See also section 58 materials at Vol 1, tab 1, p 8 (report p 8 of 18). 21. Section 58 materials at Vol 1, tab 1, p 8 (report p 8 of 18). 22. Section 58 materials at Vol 1, tab 1, p 9 (report p 9 of 18). 23. Section 58 materials at Vol 2, tab 74, p 1770. 24. Section 58 materials at Vol 2, tab 74, p 1790. 25. Section 58 materials at Vol 2, tab 74, p 1790. 26. Section 58 materials at Vol 2, tab 74, p 1791. 27. Section 58 materials at Vol 2, tab 74, pp 1791-1792. 28. Section 58 materials at Vol 2, tab 74, pp 1791-1792. 29. Section 58 materials at Vol 2, tab 74, p 1792. 30. Transcript, 7 June 2022 at page 81. 31. Transcript, 7 June 2022 at page 82. 32. Portelli first affidavit at [31]-[33]. 33. Portelli first affidavit [48]. 34. Transcript, 9 June 2022, page 246. 35. Transcript, 9 June 2022, page 247. 36. Transcript, 9 June 2022, page 247. 37. Portelli first affidavit [38] and Ex AMP1, pp 141-197. 38. Portelli first affidavit [40]-[45], Ex AMP1, pp 199 and 205 to 224. 39. Prideaux first affidavit [78]. 40. Prideaux first affidavit [78]. 41. Prideaux first affidavit [79]. 42. Second Portelli Affidavit [27]. 43. Second Portelli Affidavit [29]. 44. Third Portelli Affidavit [8]. See also Transcript, 9 June 2022, page 252. 45. Transcript, 9 June 2022, page 249. 46. Transcript, 9 June 2022, page 255. 47. Transcript, 9 June 2022, page 255. 48. Transcript, 9 June 2022, page 256. 49. Transcript, 9 June 2022, page 256. 50. Transcript, 9 June 2022, page 265. 51. Transcript, 9 June 2022, page 265. 52. Transcript, 9 June 2022, page 270. 53. Transcript, 9 June 2022, page 268. 54. First Portelli Affidavit at [40]. 55. First Portelli Affidavit at [39]-[44]. 56. Second Portelli Affidavit at [28]; Transcript, 9 June 2022, page 242. 57. Transcript, 9 June 2022, page 285. 58. Transcript, 9 June 2022, page 243. 59. First Portelli Affidavit at [39]-[44]. 60. Transcript, 9 June 2022, page 268. 61. Transcript, 9 June 2022, page 240. 62. Second Portelli Affidavit at [28]. 63. First Portelli Affidavit, AMP-1, pages 52 and 78. 64. First Portelli Affidavit, AMP1, page 207. 65. Transcript, 9 June 2022, page 284. 66. Transcript, 9 June 2022, page 243. 67. First Kendall Affidavit, DK1 [125](b), pages 5110 and 5117. 68. Transcript, 9 June 2022, page 253. 69. Third Portelli Affidavit, AMP-2, page 35. 70. Transcript, 17 June 2022, page 417. 71. Second Prideaux Affidavit at [4](m). 72. Section 58 documents, tab 3B, page 36. 73. Section 58 documents, page 48. 74. First Kendall Affidavit [150]. 75. First Kendall Affidavit [151]. 76. First Portelli Affidavit [63]. 77. First Portelli Affidavit [64]. 78. First Portelli Affidavit [65]. 79. Second Kendall Affidavit [44]. 80. Transcript, 9 June 2022, page 273. 81. Transcript, 9 June 2022, pages 271-272. 82. Transcript, 9 June 2022, page 277. 83. Transcript, 9 June 2022, page 277. 84. Transcript, 7 June 2022, pages 84-85. 85. Manual, cl 3.3.1.2. 86. Manual, cl 3.3.1.2. 87. First Kendall Affidavit at [46]. 88. Transcript, 7 June 2022, page 55. 89. Transcript, 7 June 2022, page 59. 90. First Kendall Affidavit [46]. 91. NESA's written submissions filed 25 February 2022 at [44]. 92. First Kendall Affidavit [51]. 93. First Kendall Affidavit, DK1, page 2699. 94. Transcript, 7 June 2022, page 62. 95. Transcript, 7 June 2022, page 63. 96. Transcript, 7 June 2022, page 64. 97. Transcript, 7 June 2022, page 65. 98. Applicant's written submissions at [51]. 99. NESA's written submissions at [57]. 100. Second Feldman Affidavit [3] and [8]. 101. Transcript, 7 June 2022, page 67. 102. First Kendall Affidavit [98]; Transcript, 7 June 2022, page 66. 103. Transcript, 7 June 2022, page 66, 104. First Kendall Affidavit [99]. 105. Transcript, 7 June 2022, page 67. 106. Transcript, 20 June 2022, page 463. 107. Transcript, 20 June 2022, page 470. 108. Transcript, 20 June 2022, page 472. 109. Transcript, 20 June 2022, page 467. 110. Section 58 documents, tab 1, page 6. 111. Section 58 documents, tab 74, page 1784. 112. NESA's written submissions at [76]. 113. Transcript, 9 June 2022, page 221. 114. Transcript, 8 June 2022, page 161. 115. Transcript, 8 June 2022, page 160. 116. Williams Affidavit [47]. 117. Transcript, 8 June 2022, page 162. 118. Transcript, 9 June 2022, page 230. 119. Applicant's written submissions at [88]. 120. Transcript, 9 June 2022, page 222. 121. Transcript, 9 June 2022, page 223. 122. Transcript, 9 June 2022, page 224. 123. Transcript, 8 June 2022, page 185. 124. Transcript, 8 June 2022, page 163. 125. Transcript, 8 June 2022, page 163. 126. Transcript, 8 June 2022, pages 164-165. See also Transcript, 9 June 2022, page 236. 127. Transcript, 9 June 2022, page 236. 128. Transcript, 8 June 2022, page 163. 129. Transcript, 8 June 2022, page 164. 130. Transcript, 9 June 2022, page 219. 131. Transcript, 9 June 2022, pages 227-228. 132. Transcript, 7 June 2022, page 94. 133. Section 58 documents, tab 142, page 5334. 134. Section 58 documents, tab 65, page 1658; Andrews Statement, Annexure B, page 28. 135. Transcript, 8 June 2022, pages 107-108. 136. Transcript, 8 June 2022, pages 172-173. 137. Transcript, 8 June 2022, page 173. 138. Segelman Affidavit [46]. 139. Transcript, 8 June 2022, page 113. 140. Transcript, 8 June 2022, pages 114 and 180. 141. Section 58 documents, Tab 66, page 1659. 142. Andrews Affidavit, page 29. 143. Transcript, 8 June 2022, page 114. 144. Transcript, 8 June 2022, page 115. 145. Andrews Affidavit, page 25. 146. Andrews Affidavit, page 28. 147. Andrews Affidavit, page 29. 148. Transcript, 8 June 2022, pages 130-131. 149. Transcript, 20 June 2022, page 488. 150. Transcript, 20 June 2022, page 484. 151. Transcript, 20 June 2022, page 484. 152. Transcript, 8 June 2022, pages 119-120. 153. Transcript, 8 June 2022, page 120. 154. Transcript, 8 June 2022, pages 123-124. 155. Transcript, 8 June 2022, pages 121, 125. 156. Transcript, 8 June 2022, page 126. 157. Transcript, 8 June 2022, page 122. 158. Transcript, 8 June 2022, pages 125-126. 159. Transcript, 20 June 2022, page 456. 160. Transcript, 8 June 2022, page 153. 161. Transcript, 8 June 2022, pages 154-155. 162. Transcript, 8 June 2022, page 155. 163. Transcript, 8 June 2022, pages 155 to 156. 164. Transcript, 8 June 2022, pages 156 to 157. 165. Transcript, 8 June 2022, page 157. 166. Transcript, 8 June 2022, page 157. 167. Transcript, 8 June 2022, page 157. 168. Transcript, 8 June 2022, page 158. 169. Williams Affidavit [82], JW-10. 170. Second Slavin Affidavit [7]. 171. Second Slavin Affidavit [8]. 172. Transcript, 8 June 2022, page 159. 173. Transcript, 9 June 2022, page 260. 174. Transcript, 9 June 2022, page 261. 175. Transcript, 9 June 2022, page 263. 176. Transcript, 9 June 2022, page 263. 177. Transcript, 20 June 2022, page 450. 178. Transcript, 9 June 2022, page 263. 179. Transcript, 9 June 2022, page 285. 180. Williams Affidavit [55]. 181. Transcript, 9 June 2022, page 240. 182. Transcript, 9 June 2022, pages 240, 277. 183. Transcript, 9 June 2022, page 243. 184. Transcript, 20 June 2022, page 476. 185. Transcript, 20 June 2022, page 476. 186. Transcript, 20 June 2022, page 460. 187. Transcript, 20 June 2022, page 459. 188. Prideaux first Affidavit at [44]. 189. Williams Affidavit at [79]. 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 Amendments 15 August 2022 - Typographical errors 16 August 2022 - Typographical errors on coversheet and at paragraph 172 corrected 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: 16 August 2022