Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Lawler v NSW Education Standards Authority [2023] NSWCATAD 273 Hearing dates: 27 July 2023 Date of orders: 23 October 2023 Decision date: 23 October 2023 Jurisdiction: Administrative and Equal Opportunity Division Before: S Montgomery, Senior Member Decision: The recommendation under review is affirmed. Catchwords: ADMINISTRATIVE LAW – Education Act – home schooling – registration – whether part-time home schooling registration permitted – whether requirements in key learning areas satisfied. Legislation Cited: Civil and Administrative Tribunal Act 2013 Administrative Decisions Review Act 1997 Education Act 1990 (NSW) Cases Cited: ANC High School Pty Ltd v Board of Studies [2012] NSWADT 125 McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354 Category: Principal judgment Parties: Kathleen Lawler (Applicant) NSW Education Standards Authority (Respondent) Representation: Counsel: D Fuller (Respondent) Solicitors: K Gribble (Agent) (Applicant) Lander & Rogers (Respondent) File Number(s): 2023/00103250 Publication restriction: Nil Reasons for Decision Introduction 1. This is an application by Ms Kathleen Lawler ("the Applicant") for review of a recommendation by the NSW Education Standards Authority ("NESA"). The NESA recommendation was that the Applicant's son ("the student") not be registered for home schooling under the Education Act 1990 (NSW) ("the Act"). NESA's recommendation was made under section 107(1)(d) of the Act. Background 1. NESA is responsible for the administration of home schooling in NSW. In November 2022, the Applicant submitted an application to NESA to renew the student's registration for home schooling. The Applicant sought registration for Years 7 to 10 and provided a registration plan in support of the application. The Applicant indicated that she sought part-time registration and that she proposed to complete most of the student's school requirements in key learning areas ("KLAs") via home schooling and one elective of Russian Language through a part-time school enrolment. 2. The Applicant proposed to deliver five KLAs - English, Mathematics, Science, Human Society and its Environment, and Visual Arts. She proposed that the student would complete a sixth KLA - Languages other than English (Russian) through a school program via a distance education provider. The intended distance education provider was the NSW School of Languages - a NSW government school. 3. The NSW School of Languages provides language courses for students whose home school cannot provide tuition in that language. Students in both government and non-government schools are able to be enrolled in the NSW School of Languages. 4. The student is not currently registered for home schooling, and he is not enrolled in either a government or non-government school. He has not been accepted for enrolment at the NSW School of Languages. 5. By letter dated 3 February 2023, NESA advised the Applicant that there is no provision under the Act for part-time home schooling registration and that the recommendation was made to refuse the application for home schooling registration. 6. The Applicant sought internal review of that recommendation. By letter dated 16 March 2023, NESA advised the Applicant that the original recommendation to refuse the application for home schooling registration was affirmed. 7. The Applicant has applied to the Tribunal for external review of the recommendation. Statutory framework 1. It is not in dispute that the student is of compulsory school-age. Section 22(1) of the Act provides: 22 Compulsory schooling—duty of parents (1) It is the duty of the parent of a child of compulsory school-age to cause the child - (a) to be enrolled at, and to attend, a government school or a registered non-government school, or (b) to be registered for home schooling under Part 7 and to receive instruction in accordance with the conditions to which the registration is subject. 1. Section 3 of the Act defines "home schooling" to mean: schooling in the child's home, other than distance education provided by a government or registered non-government school in which the child is enrolled. 1. The Objects of the Act are included in Part 2 of the Act. Section 4 sets out the principles on which the Act is based in the following terms: In enacting this Act, Parliament has had regard to the following principles— (a) every child has the right to receive an education, (b) the education of a child is primarily the responsibility of the child's parents, (c) it is the duty of the State to ensure that every child receives an education of the highest quality, (d) the principal responsibility of the State in the education of children is the provision of public education. 1. Section 5 of the Act sets out the principal objects of the Act as: The principal objects of this Act are as follows - (a) to set out aspects of the school curriculum, including the minimum curriculum for school registration and the curriculum for candidates for the Record of School Achievement and the Higher School Certificate, (b) to provide for the establishment and operation of government schools, (c) to ensure that only government schools established under this Act or non-government schools registered under this Act operate in New South Wales, (d) to allow children to be educated at home, (e) to provide for the grant of Records of School Achievement and Higher School Certificates and for the accreditation of non-government schools that are competent to present candidates for them. 1. Section 6 of the Act sets out the objects for administration of the Act or of education as: 6 Objects for administration of this Act or of education (1) It is the intention of Parliament that every person concerned in the administration of this Act or of education for children of school-age in New South Wales is to have regard (as far as is practicable or appropriate) to the following objects— (a) assisting each child to achieve his or her educational potential, (b) promotion of a high standard of education in government schools which is provided free of charge for instruction and without discrimination on the ground of sex, race or religion, (c) encouraging innovation and diversity within and among schools, (d) provision of an education for children that gives them access to opportunities for further study, work or training, (e) mitigating educational disadvantages arising from the child's gender or from geographic, economic, social, cultural, lingual or other causes, (f) provision of an education for Aboriginal children that has regard to their special needs, (g) development of an understanding of Aboriginal history and culture by all children, (h) provision of an education for children from non-English speaking backgrounds that has regard to their special needs, (i) recognition of the special problems of rural communities, particularly small and isolated communities, (j) provision of opportunities to children with special abilities, (k) provision of special educational assistance to children with disabilities, (l) development of a teaching staff that is skilled, dedicated and professional, (m) provision of opportunities for parents to participate in the education of their children, (m1) provision of opportunities for Aboriginal families, kinship groups, representative organisations and communities to participate in significant decisions under this Act relating to the education of their children, (n) provision of an education for children that promotes family and community values. (1A) It is the intention of Parliament that the provision of courses of study required by this Act for the Higher School Certificate has the following objects - (a) to provide a curriculum structure that encourages students to complete secondary education, (b) to foster the intellectual, social and moral development of students, in particular by developing - (i) their knowledge, skills, understanding and attitudes in the fields of study they choose, and (ii) their capacity to manage their own learning, and (iii) their desire to continue learning in formal or informal settings after school, and (iv) their capacity to work with others, and (v) their respect for the cultural diversity of Australian society, (c) to provide a flexible structure within which students can prepare for— (i) further education and training, and (ii) employment, and (iii) full and active participation as members of the community, (d) to provide formal assessment and certification of students' achievements, (e) to provide a context within which schools also have the opportunity to foster the physical and spiritual development of students. (2) This section does not limit the operation of any other provision of this Act. 1. Section 9 of the Act provides: 9 Key learning areas for secondary education (Years 7 to 10) For the purposes of this Act, each of the following is a key learning area for secondary education in Years 7 to 10 - - English, - Mathematics, - Science, - Human Society and its Environment, - Languages other than English, - Technological and Applied Studies, - Creative Arts, - Personal Development, Health and Physical Education. 1. Section 10(1) of the Act provides: 10 Minimum curriculum for secondary education (Years 7 to 10) (1) The curriculum for secondary school children during Year 7 to Year 10 (other than for candidates for the Record of School Achievement) must meet the following requirements - (a) courses of study in 6 out of the 8 key learning areas for secondary education are to be provided for each child, (b) courses of study in the key learning areas of English, Mathematics, Science and Human Society and its Environment are to be provided during each Year, but the courses of study in the other key learning areas need not be provided during each Year, (c) 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, (d) courses of study in a key learning area are to be provided in accordance with any relevant guidelines developed by the Authority and approved by the Minister, (e) courses of study in a key learning area are to be based on, and taught in accordance with, a syllabus developed or endorsed by the Authority and approved by the Minister. 1. Section 23 of the Act provides that, subject to specified defences, it is an offence for a parent to fail to comply with the requirements of section 22(1) of the Act. 2. Section 25 of the Act provides that a certificate may be issued exempting a child from attending school: 25 Certificate of exemption from attending school (1) The Minister may grant a certificate exempting a child from the requirement of this Part that the child be enrolled at and attend a government school or registered non-government school or be registered for and receive home schooling, if the Minister is satisfied that conditions exist which make it necessary or desirable that such a certificate should be granted. (2) A certificate of exemption under this section may be given subject to conditions and may be limited in its operation to a period specified in the certificate. (2A) A certificate of exemption under this section may be limited to exemption from the requirement to attend a school during the times specified or referred to in the certificate. (3) A certificate of exemption under this section may be cancelled by the Minister. 1. Part 7, Division 2, Subdivision 5 of the Act deals with Registration for home schooling. Section 71 of the Act provides: 71 Application for registration for home schooling (1) A parent of a child may apply in writing to the Minister for registration of the child for home schooling. (2) As soon as practicable after such an application is made, the Minister is to obtain advice on the application from an authorised person. (3) The authorised person is to notify the applicant in writing of a recommendation to the Minister that the application be refused. 1. Section 3 of the Act defines "authorised person" to mean: a person who is authorised in writing by the Minister (or the Minister's delegate under section 119) for the purposes of that provision. 1. Section 72 of the Act provides: 72 Registration for home schooling (1) As soon as practicable after receiving the recommendation of an authorised person about an application for registration of a child for home schooling, the Minister - (a) is to register the child in a Register kept by the Minister for the purpose, or (b) is to refuse to register the child. (2) The Minister is to register the child if the Minister, having regard to - (a) the recommendation of the authorised person about the application, and (b) any decision of the Tribunal on an application for an administrative review of the authorised person's recommendation, is satisfied that the conditions subject to which registration is required to be given will be complied with. (3) The Minister may register more than one child of any one parent for home schooling. (4) If the authorised person recommends that the Minister refuse to register a child for home schooling, the Minister may not do so unless - (a) 30 days have elapsed since the applicant was given written notice of the authorised person's recommendation and no application has been made to the Tribunal for an administrative review of the recommendation within those 30 days, or (b) the Tribunal has determined an application for an administrative review (made within those 30 days) of the recommendation and the Minister has considered any contrary recommendation of the Tribunal and the reasons for it, or (c) any such application for an administrative review of the recommendation has been withdrawn. (5) The Minister is to notify the applicant in writing of the Minister's decision to refuse to register the child for home schooling. (6) On registration of a child for home schooling, a certificate of registration is to be issued for the child to the applicant for registration. 1. Section 73 of the Act provides for home schooling registration conditions: 73 Conditions and duration of registration for home schooling (1) The registration of a child for home schooling is subject to the conditions specified in the certificate of registration. (2) The conditions so specified - (a) must comply with the requirements of the regulations, and (b) subject to any such regulations, must provide for the child to receive instruction that meets the relevant requirements of Part 3 relating to the minimum curriculum for schools. 1. Section 74 of the Act provides for cancellation of home schooling registration: 74 Cancellation of registration for home schooling (1) The Minister may, on the recommendation of an authorised person, cancel the registration of a child for home schooling by notice in writing to a parent of the child, if the parent - (a) has failed to ensure that the child receives instruction in accordance with the conditions to which the registration is subject, or (b) has refused or failed to allow an authorised person (in accordance with those conditions) to enter, at any reasonable time, the premises where the child receives schooling or to inspect those premises or records required to be kept for the purposes of this Act, or (c) has breached any other condition to which the certificate of registration is subject. (2) The Minister may not cancel the registration of a child for home schooling under subsection (1)(a) if - (a) the child was prevented from receiving instruction by sickness, permanent or temporary incapacity or some accident or unforeseen event, or (b) the child has not received instruction for only 3 school days or less in any period of 3 months during which the child has been registered for home schooling, or (c) any failure to ensure that the child received instruction was a result of the child's disobedience and was not due to the default of the parent. (3) The Minister may not cancel the registration of a child for home schooling written unless notice of the authorised person's recommendation to the Minister has been given to a parent of the child and - (a) 30 days have elapsed since the giving of that notice, during which time no application has been made to the Tribunal for an administrative review of the recommendation, or (b) the Tribunal has determined an application for an administrative review (made within those 30 days) of the recommendation and the Minister has considered any contrary recommendation of the Tribunal and the reasons for it, or (c) any such application for an administrative review of the recommendation has been withdrawn. 1. Section 94 of the Act provides for grant of a Record of School Achievement: 94 Record of School Achievement (1) Records of School Achievement are to be granted by the Authority to students— (a) who— (i) have attended a government school, or (ii) have attended a registered non-government school to which a current certificate of accreditation for presentation of candidates for the Record of School Achievement applies, or (iii) have attended a school outside New South Wales recognised by the Authority, and (b) who have participated, to the Authority's satisfaction, in courses of study which have been determined under this Act as appropriate to be undertaken by candidates for the Record of School Achievement, and (c) who have been accepted by the Authority as having satisfactorily completed those courses of study, and (d) who have, to the Authority's satisfaction, undertaken the requisite examinations or other forms of assessment, and (e) who have complied with any requirements prescribed by the regulations or any requirements imposed by the Minister or the Authority, and (f) who have completed Year 10. (2) The requisite examinations or other assessments may be conducted on a school-basis, but are to be moderated on a State-wide basis in the learning areas and in the manner determined by the Authority. (3) The Authority may refuse to grant a Record of School Achievement to a student whose attendance or application at school has been of such an unsatisfactory character that the granting of a Record of School Achievement would not, in the opinion of the Authority, be justified. (4) Records of School Achievement are to be granted in the manner determined by the Authority. 1. Section 107(1)(a) of the Act provides: 107 Applications for administrative reviews of certain decisions (1) An application may be made to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions— (a) a recommendation of the Authority that registration of a non-government school be refused … 1. Pursuant to section 108 of the Act the Tribunal has the power to confirm the recommendation or make a different recommendation. Section 108 provides: 108 Determination of application by Tribunal (1) On application for the administrative review of a recommendation or decision, the Tribunal may – (a) confirm the recommendation, direction or decision, or (a1) in the case of an application for the administrative review of a direction of the Secretary concerning the government schools in which a particular student may be enrolled—recommend to the Minister that the direction be varied or revoked, or (a2) in the case of an application for the administrative review of a non-attendance direction given by the Minister under section 26HA—recommend to the Minister that the direction be varied or revoked, or (b) in the case of an application for the administrative review of a recommendation of the Authority or other person or body—make a different recommendation to the Minister concerning the subject-matter of the application, or (c) in the case of an application for the administrative review of a decision of the Authority not to accredit a school—recommend to the Minister that the Minister accredit the school as requested or grant such other accreditation as the Tribunal considers appropriate, or (d) in the case of an application for the administrative review of a decision of the Authority to cancel a school's accreditation—recommend to the Minister that the Minister not cancel the accreditation or cancel it only in so far as it relates to one of the recognised certificates. 1. In ANC High School Pty Ltd v Board of Studies [2012] NSWADT 125 at paragraph [14] the Administrative Decisions Tribunal described the Tribunal's role under section 108 as: "to conduct a merits review of the Board's recommendation or decision and decide what the "correct and preferable" recommendation or decision is having regard to the material before it at the hearing: ADT Act, s 63(1) and (2). That is the Tribunal's role despite the fact that s 108 excludes the entirety of s 63 of the ADT Act. Section 108 sets out the orders which the Tribunal may make on review of a decision made under the Act and, to that extent, replaces s 63(3). By excluding s 63, we do not consider it to have been the intention of the legislature to change the nature of the Tribunal's role as set out in s 63(1) and (2)." 1. The reference to the ADT Act in that decision is a reference to the Administrative Decisions Tribunal Act 1997. The Administrative Decisions Tribunal Act 1997 is now the Administrative Decisions Review Act 1997. 2. In proceedings for the merits review of an administrative decision, there is no onus of proof on either party: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354. Instead, the Tribunal "stands in the shoes" of the decision-maker and is able to inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: subsection 38(2) of the Civil and Administrative Tribunal Act 2013. The Applicant's case 1. The Applicant appeared at the hearing and gave evidence. Her agent, Ms Gribble provided written and oral submissions on her behalf. 2. The Applicant provided an outline of the steps that she had taken in regard to her application for registration. These included obtaining relevant information and having discussions with NESA staff. She said that in those discussions she was advised that it was not possible for students to be both enrolled in school and registered for home schooling. 3. In February 2023 she was advised that it had been recommended that her application to register for home schooling be rejected because: Under the Education Act 1990, children must be enrolled at and attend a government or registered non-government school OR registered for home schooling. There are no provisions for part time home schooling registration. 1. She was subsequently informed that if she planned for the student to study via distance education outside of NSW then NESA would be able to register him for home schooling without issue. She said the problem with her home schooling plan was that she wanted the student to study a subject through a NSW distance education school. 2. The Applicant does not dispute that section 22 of the Act requires that children must be provided with primary and secondary school education and this requirement can be met through enrolment and attendance at a government school or though enrolment and attendance at a non-government school or through being registered for home schooling. She says that each method of undertaking schooling is represented as being equal, each meets the minimum requirement for compulsory school education and accepts that each option is separated from each other in the Act by the conjunction "or." 3. However, she submitted that the Act is silent on part-time enrolment in or attendance at a government or non-government school except in relation to adults returning to school beyond the normal school leaving age: section 20A(2)(g)). She further submitted that the Act is also silent on part-time home schooling. She submitted that NESA's contention that students cannot be both registered for home schooling and enrolled in a school because of Section 22(1) of the Act should be rejected. She pointed out that exceptions to the position that students cannot be both registered for home schooling and enrolled in a school are commonplace. 4. The Applicant submits that the Act does not prohibit children from being simultaneously registered for home schooling and enrolled in a school any more than it does not prevent students from being simultaneously enrolled in a government and a non-government school or simultaneously enrolled in two government schools. 5. The Applicant argues that the Act considers home schooling to be an education choice that is equal with government and non-government schooling. She further says that NESA has an obligation to administer the Act in such a way as to facilitate the best educational outcomes for children. To prohibit the registration for home schooling of children who are also enrolled in a school for part of their study could be considered inimical to the Act, where to do so disadvantages a student's education. 6. She submitted that the purpose of the Act is to facilitate education for all NSW children and to promote best education outcomes for students, whichever type of schooling is chosen. Registering the student for home schooling would promote his education by enabling him to be home schooled for most subjects while accessing distance education for the study of Russian. 7. The Applicant says that students in NSW are routinely simultaneously enrolled in government and non-government schools. Examples of circumstances where this occurs include: * Being enrolled in a non-government school and a NSW Department of Education Hospital School; or * Being enrolled in a non-government school and the NSW School of Languages. 1. She submitted that if NESA's construction of section 22 is correct, it also would prevent students from being simultaneously enrolled in a government and a non-government school. However, students routinely have the minimum curriculum requirements met through a combination of government schooling and non-government schooling, including all students enrolled in the NSW School of languages whose main school is a non-government school. 2. The NSW School of Languages is a distance education school that only teaches languages and all of its students are enrolled in another school. 3. The NSW Department of Education has several schools in NSW Hospitals including at John Hunter Hospital, Westmead Children's Hospital, Sydney Children's Hospital, Liverpool Hospital, Bankstown Hospital and Royal Prince Alfred Hospital. School-aged children can be enrolled in these schools if they are going to be admitted to the hospital for a week or more, or if they are admitted to hospital on a regular basis. In some circumstances, siblings of hospitalised children can also be enrolled in hospital schools. 4. She referred to the Department of Education School Infrastructure webpage in support for her submission that children who are enrolled in government or non-government schools can be enrolled in NSW hospital schools. Registered home schooled students are currently not permitted to be enrolled in NSW hospital schools. 5. The Applicant notes that the NSW School of Languages caters for students in Years 9 to 12 who attend a NSW or ACT Government or non-Government school which does not offer one of the languages that is offered by the NSW School of Languages. She also notes that simultaneous enrolment of students in more than one government school is routine in NSW. She submits that the simultaneous enrolment in a government school and a non-government school where schooling is delivered partly by one school and partly by another school can reasonably be characterised as part-time schooling in each institution. 6. She further submits that if NESA's interpretation of the Act is correct and each of the options listed in section 22(1) for meeting the compulsory schooling requirement present a maximum allowance for schooling and not a minimum, then students should not be permitted to be simultaneously enrolled in more than one government school as section 22(1)(a) refers to enrolment in 'a government school' in the singular. 7. However, the NSW Department of Education routinely allow students to be enrolled in two schools simultaneously, including two government schools. 8. Where students are simultaneously enrolled in an ordinary high school (which may be a government or a non-government school) and also enrolled in the NSW School of Languages, students receive tuition in all of their subjects except for a foreign language in their main school and receive tuition on a foreign language at the NSW School of Languages. 9. She also noted that NESA routinely registers students for home schooling when they are undertaking tuition by individuals other than the registering parent or in educational institutions other than schools. It is routine for students in NSW be registered for home schooling by NESA but to be undertaking study for one or more subjects via a university or via TAFE or another registered training organisation. She submits that the information that she was given regarding the ability of NESA to register students who were studying distance education via an interstate non-government distance education school also supports the proposition that NESA can assess and approve applications for home schooling where a portion of the study is undertaken via enrolment in an institution, including a school. 10. She further submitted that the proper construction of the Act should not prohibit students being registered for home schooling and also being enrolled in a government or a non-government school. Rather, she submitted that so long as students are enrolled at and attending a government school or a non-government school or registered for home schooling and the required pattern of study is being delivered in the required combination, parents are meeting their obligations under the Act regarding compulsory schooling requirements. 11. The Applicant also referred to the debate of the second reading of the Education Reform Bill in which multiple members of both Houses of the NSW Parliament pointed out that the intention of section 22 was to give home schooling equal standing with enrolment at a government or non-government school. Amendments that would have diminished the status of home schooling were proposed and defeated. 12. She contends that in adopting an inflexible policy, NESA is failing to have regard to the Objects of the Act to which it is required to have regard. The Act provides that regard should be paid to the Objects in "as far as is practicable or appropriate". The Applicant says that NESA is limiting the student's educational options by preventing him from being able to be both registered for home schooling and enrolled in a NSW school. She says that NESA is obligated to consider how and why being registered will assist the student to reach his educational potential. 13. The NSW School of Languages does not currently have a process by which home schooled students can be enrolled in the school. However, non-government schools can enrol their students in that school. The Applicant gave evidence that she had been in contact with the principal of a NSW non-government school and that he is willing to enrol the student for the purpose of managing and facilitating his enrolment in the NSW School of Languages. She has spoken to the principal about enrolling the student in the single subject of Russian and for the subject to be studied through the NSW School of Languages. The Applicant proposes that she could use the school as part of an administrative process to allow her to engage with the NSW School of Languages. 14. She submits that in all the circumstances, the recommendation to refuse registration for home schooling was not the correct and preferable decision and it should be set aside. 15. I note that the Applicant has referred to decision in DMM v Board of Studies, Teaching and Educational Standards [2016] NSWCATAD 38 and DFD v New South Wales Education Standards Authority [2018] NSWCATAD 48. Neither of those decisions assist in the issues raised by this application. NESA's case 1. NESA does not agree with the Applicant's construction of the Act. NESA's position is that the Recommendation should be affirmed because: 1. the Act does not allow part of the minimum curriculum for a child registered for home schooling to be delivered by a government or registered non-government school, and therefore a child cannot be registered for home schooling where that mode of delivery is proposed; and 2. in any event, the Tribunal would not be satisfied that the student will receive instruction in languages that meets the minimum curriculum requirements, because there is no evidence that he is or is capable of being enrolled in the NSW School of Languages. 1. In regard to the proper construction of the Act, NESA submitted: * section 3 of the Act defines "home schooling" to mean schooling in the child's home. It does not include schooling from a school. * a child cannot be registered for home schooling unless the child will receive instruction that meets the minimum curriculum requirements. This includes courses of study in six of the KLAs for secondary education being provided to the child in accordance with section 10(1) of the Act. * a child cannot be registered for home schooling in circumstances where it is proposed that part of the minimum curriculum would be delivered by a government or registered non-government school. * the express exclusion of distance education provided by a government or registered non-government school from the definition of 'home schooling' implies that education provided by a government or registered non-government school will not fulfil or contribute to the fulfilment of the requirement that a home-schooled child receives instruction that meets the minimum curriculum for schools. * section 22 of the Act expresses registration for home schooling and receiving instruction in accordance with the conditions to which the registration is subject as an alternative to being enrolled at and attending a government school or a registered non-government school (indicated by the word 'or' between subparagraphs (a) and (b)). The same appears in the offence provision in section 23. Again, this implies that the kind of instruction that will accord with the conditions of registration for home schooling is not instruction at or by a government or registered non-government school. * the Act contemplates only full-time education in a government or registered non-government school. The compulsory schooling alternative in section 22(1)(a) includes both being enrolled in and attending a government or registered non-government school * the definition of 'attend a school' is "a child attends a school if, and only if the child attends the school at all times while the school is open for the child's instruction or participation in school activities". * the defences to a prosecution for failing to comply with this requirement do not include the child being registered for or receiving home schooling. * The section 25 power to issue a certificate exempting a child from attending school makes it clear that home schooling does not include schooling in a registered school. However, an exception might arise under section 25(2A) of the Act. * The restriction on cancellation of home schooling registration in section 74(2)(b) of the Act implies that it is not possible to mix attendance at a government or registered non-government school with home schooling. 1. In regard to the circumstances of this matter, NESA submits: * The Applicant plans to deliver to the student only five of the six minimum curriculum KLAs for home schooling. Her only plan for the sixth KLA is that it be delivered by a government school. That cannot fulfil the condition of home schooling that the student will receive instruction that meets the minimum curriculum for schools for the reasons set out above. * even if delivery by a government or registered non-government school is theoretically capable of forming part of the provision of the minimum curriculum to a home-schooled student, the Tribunal cannot be satisfied that the Languages KLA will actually be delivered to the student in accordance with the minimum curriculum. * There is no evidence that the student has been accepted for enrolment by the NSW School of Languages, and the available information from that school indicates he will not be accepted for enrolment. * the Applicant's Program does not demonstrate any system for planning, supervising and recording teaching and learning experiences or the student's progress and achievement relating to the Languages KLA. * In effect, the Applicant seeks registration of the student for home schooling based on no more than a hope or desire for the Languages KLA to be delivered through the NSW School of Languages. * whatever view is taken of the construction issue, the Tribunal cannot be satisfied that the conditions subject to which home schooling registration is required to be given will be complied with in relation to the student. 1. In the circumstances it is submitted that the Recommendation should be affirmed, and the application for review should be dismissed. Consideration 1. This is a matter in which there is a clear variance between the construction of the Act that is urged by NESA and what appears to be a routine practice adopted in NSW. It appears to be commonplace that students have the minimum curriculum requirements met through a combination of government schooling and non-government schooling. For example, it is apparent that all students enrolled in the NSW School of languages whose main school is a non-government school would fall into that category. 2. This practice suggests that a practical approach has been adopted to further the object of assisting each child to achieve his or her educational potential. However, a similar approach has not been adopted in relation to home schooling and, in particular, in relation the Applicant and the student. 3. In these circumstances it is my view that there is considerable merit in the Applicant's argument that the narrow construction urged by NESA has the potential to limit a student's educational options. In my view there is merit in the Applicant's argument that it might not be the correct construction of the Act. 4. However, I agree with NESA that I do not need to decide the question of whether or not the correct construction of the Act would permit the student to enrol in the NSW School of Languages. 5. Notwithstanding my view in relation to the Applicant's argument about the narrow construction urged by NESA, in the circumstances of this matter the available information from the NSW School of Languages indicates is that the student will not be accepted for enrolment. 6. The information that the Applicant has provided which suggests that the student's enrolment might be facilitated by a particular non-government school cannot be determinative because it provides no more than the possibility of enrolment. In fact, it offers no more than the possibility that the non-government school may be able to help the Applicant in trying to achieve enrolment in the NSW School of Languages. 7. The correspondence from the non-government school principal provides little information about the basis on which the student might be made an offer to enrol at the school. It appears to be an offer for enrolment to enable the student to receive a Record of School Achievement ("RoSA"). However, without more detail I cannot be satisfied that the enrolment that the Applicant is proposing would satisfy the requirements of section 94 of the Act. In any event, at this time there is no enrolment, so it is merely hypothetical. 8. I agree with the NESA submission that the Applicant seeks registration of the student for home schooling based on no more than a hope or desire for the Languages KLA to be delivered through the NSW School of Languages. 9. I note that the Applicant has indicated that she is able to demonstrate that she can satisfy the KLA requirements for the subject of Personal Development, Health and Physical Education ("PDHPE"). If she is able to do so, her application for home schooling registration might be successful. Similarly, if the student is able to enrol in NSW School of Languages the application for home schooling registration might be successful. 10. However, in its present form, the Applicant's Program does not satisfy the requirements relating to the Languages KLA or the PDHPE. Therefore, her application for the student's registration for home schooling must fail. 11. On the material before me, I am satisfied that the correct and preferable decision is that the recommendation that the Applicant's son not be registered for home schooling under the Education Act 1990 (NSW). Accordingly, the recommendation should be affirmed. Order 1. The recommendation under review is affirmed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 October 2023