Ford and Net Grammar School Pty Ltd -v- Board of Studies [1999] NSWADT 47

CITATION: Ford and Net Grammar School Pty Ltd -v- Board of Studies [1999] NSWADT 47

DIVISION: General

APPLICANT: Judith Ford and Net Grammar School Pty Ltd

RESPONDENT: The General Manager, Office of the Board of Studies

FILE NUMBER: 993011

HEARING DATES: 04/16/1999

SUBMISSIONS CLOSED: 04/28/1999

DATE OF DECISION: 30 June 1999

K P O'Connor DCJ - President BEFORE: J M Riordan - Member K L McCredie - Member

PRIMARY LEGISLATION: Education Act 1990

APPLICATION: Review of decision to recommend refusal of registration of non-government school -

MATTER FOR DECISION: Jurisdiction

Applicant: N Hufton, solicitor, Slade Manwaring Solicitors REPRESENTATION: Respondent: P Singleton, solicitor advocate instructed by Crown Solicitor

1 the Tribunal makes the following recommendation to the Minister: that the Minister direct the Board - ORDERS: * to proceed to consider the application fully in accordance with Division 3 of Part 7 of the Act * to make a recommendation in relation to the application for registration pursuant to s.51 within 30 days * to provide the applicant with a statement of reasons as to the extent to which the application satisfies or fails to satisfy the criteria for registration prescribed by s.47 of the Act * then to proceed expeditiously if registration is granted to deal with the application for accreditation to present candidates for the Higher School Certificate.

1 This is an application for review made pursuant to Part 3 of the Administrative Decisions Tribunal Act 1997 ('the Tribunal Act'). 2 The application seeks review of the decisions of an administrator, the Board of Studies ('the Board'), in relation to an application for initial registration of a proposed non-government school and the accreditation of that proposed school to accredit it for the purpose of presenting candidates for the Higher School Certificate ('HSC'). 3 The applicants named in the application for review filed on 16 January 1999 were Dr Chris Bertinshaw, Chairman of the Board of Directors of Net Grammar School Pty Ltd, and Net Grammar School Pty Ltd itself. At hearing on 16 April 1999 leave was given to substitute for the first applicant Ms Judith Ford, also a Director and the proposed principal. The original applications to the Board dated 18 June 1998 had been made by Ms Judith Ford, as the proposed principal, on behalf of Net Grammar School Pty Ltd. (As Ms Ford and Net Grammar School Pty Ltd has the same interest in the proceedings, for convenience they will be referred to below as 'the applicant'.) 4 The respondent is the Board, a body constituted under the Act. The Board is generally responsible for making recommendations to the Minister for Education ('the Minister') in relation to school registration applications (Act, Part 7) and for making decisions in relation to the accreditation of non-government schools to present candidates for the School Certificate and the HSC. A school seeking accreditation must be a registered school: Act, s.85(1). The application for registration and the application for accreditation are usually dealt with in the one process, as occurred in this case. 5 Board Material: Under s.58 of the Tribunal Act an administrator is obliged to lodge with the Tribunal within 28 days of the application material documents where a decision is reviewed. The Board lodged them on 11 February 1999. These comprised the applicant's original application dated 18 June 1998, the applicant's letter supporting its application for registration and accreditation, the application itself (a document of 36 pages), two inspectors' file notes, a short discussion paper on "virtual" or Internet schools, letter from the applicant, extracts from draft report to the Board dated 8 December 1999, Board Document 98/3374 which appears to be a briefing note to the Board, Submission to the Minister for Education dated 22 December 1998 and letter dated 22 December 1998 to applicant. The Submission to the Minister and in particular the letter dated 22 December 1998 contain the decisions of which the applicant complains. Jurisdiction 6 Under s.8 of the Tribunal Act "a reviewable decision is a decision of an administrator that the Tribunal has jurisdiction under an enactment to review". The primary jurisdiction which the applicant sought to invoke is that conferred by s.107 to s.109 of the Act. These provisions commenced on 6 October 1998: Gov Gaz (2 October 1998) 7889. The particular provision the applicant cited as founding jurisdiction is s.107. Under s.107 of the Act the Tribunal is empowered to determine applications for review of "a recommendation of the Board that registration of a non-government school be refused" (s.107(1)(a)); and for review of "a decision of the Board not to accredit a school" (s.107(1)(f)). 7 While the applicant cited s.107 as the basis for its application for review, section 109 may also be relevant. Section 109 of the Act addresses the role of the Tribunal in relation to a failure by the Board to make a recommendation or decision. It covers applications of the kind made in this case and provides in sub-s.(2): " For the purposes of section 6(4) of the Administrative Decisions Tribunal Act 1997, the Board or Minister (as the case may be) is taken to be required to make a decision in relation to an application to which this section applies within 5 months of the lodgment of such an application." 8 The reference to s.6(4) above is clearly a mistake as the provision in the Tribunal Act which relates to the specification of time periods for the making of decisions by enactments is s.6(5). In the present case the communication giving rise to the review application was made 6 months and 3 days after receipt of the original applications. 9 Other provisions of s.6 of the Tribunal Act are also material to the review application. Section 6(2) provides: "Decision made under an enactment For the purposes of this Act, a decision is made under an enactment if it is made in the exercise (or purported exercise) of a function conferred or imposed by or under an enactment." Section 6(3) provides: " Decisions made without power For the purposes of this Act (and without limiting subsection(2)), a decision that purports to be made under an enactment is taken to be a decision made under the enactment even if the decision was beyond the power of the decision-maker to make it". Section 6(4) provides: " Failure to make decision on basis that beyond power For the purposes of this Act (and without limiting subsection (2)), a refusal of a decision-maker to make a decision under an enactment because the decision-maker considers that the decision concerned cannot lawfully be made under the enactment is taken to be a decision under the enactment to refuse to make the decision requested". Role of Tribunal 10 Effect of Tribunal Decision: In the case of the recommendation not to register, the Tribunal may confirm it or make a different recommendation to the Minister (s.108(1)(a) and (b). In the case of the decision not to accredit the Tribunal may recommend to the Minister that the Minister accredit the school as requested or grant such other accreditation as the Tribunal considers appropriate (s.108(1) (c)). It will be seen that in each instance the Tribunal's powers on review are qualified. In neither case is the determination made by the Tribunal a decision conclusive as to the outcome of the matter, in contrast to the position which ordinarily applies to the Tribunal's decisions (as to which see s.63 and s.65 of the Tribunal Act which are ousted by s.108(2) of the Act). 11 Questions of Law: As will become apparent, this application for review raises some questions of statutory interpretation. Under s.78(2) of the Tribunal Act "a question of law (including the question whether a particular question is a question of law) arising in proceedings constituted by one or more judicial members is to be decided in accordance with the opinion of the judicial member". There is one judicial member, the President, sitting in these proceedings. The Application to the Board 12 The Application for Registration and Accreditation lodged with the Board is dated 19 June 1998. As noted earlier the unusual feature of the original application was the proposal to educate students substantially by remote communication through Internet access. The applicant claimed to be offering a 'world first' and sought initial registration for two years, on a pilot basis before any other 'virtual school' was given registration. 13 The school is proposed to be conducted from the 11th floor of a building in the Central Business District of Sydney (11th floor, 70 Pitt Street). In the 'Principal's Statement' forming Section A of the application to the Board the following description of the school is given: "Net Grammar School is a school unlike any other school. It has no classrooms, playgrounds, gymnasiums or science laboratories. Students attending Net Grammar School learn in virtual classrooms. They use the Internet to communicate with their teachers and peers. For class sessions the teacher and the students enter a chat room to share ideas and gain information. A problem worked on the virtual whiteboard appears simultaneously on each student's screen. Net Grammar School has made distant learning and university entrance qualifications available to anyone, anywhere in the world." 14 Under the heading 'Objectives' appears the following: "The Net Grammar School's primary objective will be to prepare students for the NSW HSC. It will do this through communicating over electronic mail and other services on the Internet. Students will be able to 'attend' the virtual classroom regardless of their geographic location. It will be of particular appeal to students located in Asia, Polynesia and the South Pacific. It will give students the opportunity to qualify for entrance to Australian universities and International universities. A secondary objective is to provide students who attend conventional schools with revision opportunities. "Study students" will be able to 'attend' virtual reality classes to revise lessons taken in conventional classroom. Net Grammar School will be able to allow students to attend classes as many times as they like so that they obtain maximum benefit from each lesson." 15 The proposal contemplates that students will normally come to New South Wales to sit the exams. It indicated that intensive study camps will be organised in New South Wales before the start of the exams, but indicates also that "we may have some students who will find the cost of such a camp beyond their means and will need to sit the exams in their own country." 16 The application for registration made detailed reference to the proposed curriculum. The subjects intended to be offered are: in English Category A, General English and Contemporary English; in Key Learning Area Group 1, Category A, Mathematics and Mathematics in Society, Computing Studies General and Computing Studies Common; in Key Learning Area Group 2 Category A, Economics, Legal Studies, Business Studies, General Studies, Japanese and Indonesian. The application envisages 50 students (25 boys, 25 girls) in year one (then contemplated to be 1999) for Year 11, with those 50 comprising the year two Year 12 group with a further 100 students (50 boys, 50 girls) enrolling in Year 11. 17 The application includes details as to the expected study commitment of students, and the method of education. It says: "The form of study will include group sessions through Microsoft NetMeeting and a dedicated chat room, talking to his or her tutor using ICQ E-mail service, and self-managed learning encompassing essays, research, reading, note taking and set exercises. A special time each week will be set aside for the students to make contact with his or her 'homeroom teacher' to discuss general problems, concerns and questions." 18 Due to differences in time zones the times when students might contact their individual tutors and other class mates are intended to be organised within three one hour time bands between 7 and 10 pm Australian Eastern Standard Time 5 nights a week Monday to Friday, with a 'Homeroom' hour on a Sunday evening. 19 The application includes information as to how failures to submit assessment tasks, absences and cheating are to be dealt with. Detailed curriculum material is included. 20 The proposed principal, Ms Ford, and six other prospective teachers are named in the application with their years of experience as teachers, academic qualifications and proposed subjects given (with one further to be advised in respect of Japanese and Indonesian). 21 Under the section of the application headed 'School Premises, Buildings and Facilities' the following statement is made: "As the Net Grammar School is a virtual classroom this section does not apply". Deliberations by the Board 22 The nature of the application caused concern to the Board's inspectors from the outset. An examination of the application commenced and discussions occurred between the Board's inspectors and the applicant. These events are referred to in the Board file lodged with the Tribunal but there is no detail provided. 23 The areas of concern of the Board are recorded in an undated handwritten memorandum addressed to all inspectors by Mr Graham Sims, Inspector (Languages). (It appears to have been written between late June and early July, as the next document in the Board material is dated 9 July.) " There are obviously major factors to be considered in accrediting an institution which proposes to prepare off-site and mainly overseas students for the NSW HSC by using Internet technology and 'virtual reality'. Such considerations, at least to my mind, include: * the definition of 'what is a school?' * building and facilities * supervision * attendance * HSC Assessment (including assurances of bona fide, original student work) * social interaction * monitoring and inspection procedures." 24 In a subsequent Discussion Paper prepared for consideration by the Registration Committee of the Board, to the above list were added three more factors of concern: * duty of care * qualifications and suitability of staff * role of the principal. 25 The Registration Committee's minutes as submitted to the Board for its meeting of 8 December 1998 note that "it had received advice that registration in NSW requires a school to exist in the conventional sense and so does recognition outside NSW". 26 The Board's consideration of the matter is recorded in the draft Board report dated 8 December 1998, as follows: "The Net Grammar School had applied for registration and accreditation or recognition. It had subsequently been agreed that recognition would be more appropriate as the school intended to provide Internet courses from Sydney using local teachers and leading to the HSC for students in Korea and nearby countries. The Board received a paper which advised that registration in NSW requires a school to exist in the conventional sense, as does recognition outside NSW. The Board noted the following points: (i) There is a question about whether the school could nevertheless operate and the students sit for the HSC. (ii) Another issue concerns whether an existing registered school could set up an Internet arrangement. (iii) The issue is very important. The Board needs to be giving consideration as to which conditions would make an Internet arrangement acceptable and, in the fullness of time, look to making recommendations to Government for amendment to the Act." 27 The question of whether the Board had an application before it with which it was competent to deal gave rise, it would seem from the Board material, to a request for legal advice from the Crown Solicitor in November 1998. The Tribunal has not seen that advice, but we gather that it is consistent with the submissions made at hearing which were essentially of a jurisdictional character. They were to the effect that the original application did not propose a 'school' within the meaning of the Act, and that therefore the Board was not competent to deal with the application. 28 But the Board did not notify the applicant on receipt of any such advice that it may not be competent to deal with the application, thereby giving the applicant the opportunity to test that decision by way of judicial review. 29 Instead the Board continued to process the application. The Board's letter dated 22 December 1998 formally responded to the original applications received on 19 June 1998. The Board advised the applicant: "The Board … has recommended that your application for registration and accreditation of the proposed Net Grammar School be declined". 30 The Board sent a memorandum of advice to the Minister on the same date recommending that the Minister "decline the application for registration of the proposed Net Grammar School". There is no reference to accreditation. 31 The substantive text of the letter written under the letterhead of the Office of the Board of Studies is as follows: "Dear Ms Ford, I refer to your application of 19 June and our recent discussions concerning the registration and accreditation of the proposed Net Grammar School by the Board of Studies. In reviewing your application the Board considered whether: * the entity must be registered as a non-government school and then accredited under the Education Act 1990 (the Act); * the normal registration requirements for non-government schools can be interpreted or modified to take account of the distance education mode of delivery proposed. In summary, it was found that : * the Act required registration and accreditation rather than recognition; and * as a school would not exist in a conventional sense, the Board would be unable to lawfully find that the registration requirements of the Act for non-governmental schools could be satisfied by your company's proposal. The Board has endorsed this view and recommended that your application for the registration and accreditation of the proposed Net Grammar School be declined. The Office remains available to assist by advising you of the services which may be lawfully offered by your company. Yours sincerely John Ward General Manager" 32 The internal memorandum from the Office of the Board to the Minister also dated 22 December 1998. It forwarded the proposal and the Board's reply. The memorandum includes the following paragraphs: " Current Position * The Office obtained legal advice from the Crown Solicitor's Office that: - the Act required registration and accreditation rather than recognition; - as a school would not exist in a conventional sense, the Board was unable to lawfully find that the registration requirements of the Act for non-governmental schools could be satisfied. * The Board of Studies endorsed this view at its meeting on 8 December. * I subsequently wrote to Ms Ford to advise her of this recommendation. * Ms Ford is dissatisfied with the Board's recommendation and she has left open the option of appealing any subsequent decision by the Minister to refuse the application for registration. Comment: While the Board and the Board's Registration Committee accept that there was some underlying merit to the company's proposal, it was accepted that registration and accreditation is beyond the Board's statutory power. The Board has indicated it wishes to explore this issue further with a view to consulting with relevant interest groups on the desirability of legislative change or regulation in this area. Recommendation: That the Minister endorse this approach and decline the application for registration for the proposed Net Grammar School." 33 The Minister subsequently endorsed the memorandum with his hand-written signature and the hand-written date "18/1/99". Was there a Recommendation to Refuse founding Jurisdiction? 34 What is less than clear is whether the advice conveyed to the applicant in the letter of 22 December amounts to a recommendation that the registration of the proposed non-government school be refused; and consequently a decision not to accredit. 35 As noted above, the letter and the memorandum to the Minister speaks of the application for registration being "declined" as distinct from "refused". The applicant in filing its application with the Tribunal has proceeded on the basis that there has been a reviewable decision to refuse to recommend registration (see Act, s.107(1)(a)) which gives rise to the necessary consequence that the application in relation to accreditation can not be proceeded with. 36 The steps required to be observed by applicant and the Board in seeking initial registration of a non-government school are set out in s.47- s.53 of the Act. The applicant's original application dated 18 June 1998 is expressed to be made pursuant to these provisions, with the accreditation application expressed to be made pursuant to s.85. 37 In correspondence with the Board and before the Tribunal the applicant has raised concerns as to non-observance of aspects of that procedure. The Board material reveals that it entertained doubts from soon after receipt of the application as to whether the proposed education initiative amounted to a 'school'. It sought legal advice (not made available to and not sought by the Tribunal) which led it to believe that it may not be competent to deal with the application on the basis that what was proposed by the applicant was not a 'school' within the meaning of the Act. Accordingly it may not have regarded itself as formally obliged to deal with the application in the manner contemplated by ss.47 to 53. Board's Case Before Tribunal 38 Before the Tribunal the Board conducted its case on the basis that the proposal it was dealing with did not involve a 'school' within the meaning of the Act. Its position is that it could not proceed to undertake the registration assessment until it has before it an education proposal that satisfies a threshold requirement of being a 'school'. The applicant on the other hand submitted to the Tribunal that it was dealing with a 'school' within the meaning of the Act; the application had been the subject of a recommendation of refusal; and it sought an alternative recommendation from the Tribunal . 39 It would seem that the Board's interpretation of its powers caused it to use the expression 'declined' rather than 'refused' in advising the applicant of the outcome of its deliberations. 40 The approach taken by the Board in mounting the case before the Tribunal as one of power would appear to mean that a ruling in those terms would allow it to decline to process applications from 'virtual reality' schools, and to obviate the need for it to engage in the process of investigation of such applications, the making of formal recommendations or decisions, and the giving of reasons for conclusions. 41 The Board's letter of 22 December 1998 does not convey clearly whether its position was that it did not have an application before it with which it could deal, or whether its position was that in accordance with normal procedures it had considered the application and found it deficient as measured against the registration requirements set out in s.47 and any policies or guidelines. 42 The applicant, not unreasonably in the Tribunal's view, took the view that it was dealing with a decision to recommend refusal; and that consequently the requirements as to procedure after such a decision was made set out in s.51 came into play. The procedure adopted by the Board in making the recommendation to the Minister appears to have been founded on s.51 of the Act, though there is no specific reference to that section in the Board's memorandum. Section 51 provides: " Determination by Minister of applications for initial registration of new non-government schools etc (1) As soon as practicable after receiving the report of the Board about an application for registration of a non-government school, the Minister: