Dao v Office of the Board of Studies [2004] NSWADT 140

CITATION: Dao v Office of the Board of Studies [2004] NSWADT 140 DIVISION: General Division APPLICANT PARTIES: Kim Dao RESPONDENT Office of the Board of Studies FILE NUMBER: 033296 HEARING DATES: 10/02/2004 SUBMISSIONS CLOSED: 05/21/2004 DATE OF DECISION: 07/12/2004

BEFORE: Hennessy N - Magistrate (Deputy President); Riordan J - Non Judicial Member; Burke T - Non Judicial Member APPLICATION: Education Act - home schooling - recommendation to refuse registration - Home schooling - recommendation to refuse registration MATTER FOR DECISION: Principal matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Education Act 1990 CASES CITED: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Boxx v Aquilina [2000] NSWSC 166, 15 March 2000 APPLICANT REPRESENTATION: In person RESPONDENT M Allars, barrister ORDERS: The recommendation to refuse to register Anthony Dao for home schooling is affirmed.

REASONS FOR DECISION Introduction 1 Ms Kim Dao has been "home schooling" her son Anthony, who is now nine years old, since 15 May 2002. Anthony is developmentally delayed and has autism. He started school at Smithfield Public School in 2000 when he was five years old. According to Ms Dao, sometime in 2001 Anthony "dropped down a level" at school and began to dislike going to school. Ms Dao applied for permission to teach Anthony at home and was given approval to do so for the period from 15 May 2002 to 14 November 2002. A second period of home schooling was approved for the period from 15 November 2002 to 14 May 2003. This is an application by Ms Dao for a review of a decision made by Mr Lindsay Swan, an officer of the Office of the Board of Studies (the respondent), to recommend the refusal of her latest application for registration. 2 In accordance with legislative requirements, the Minister of Education (the Minister) has not yet made a final decision in relation to Ms Dao's application. The Minister must consider Mr Swan's recommendation and the decision of the Tribunal before making a decision. Issue 3 The Tribunal's task is to determine whether Mr Swan's decision to recommend against registering Anthony for home schooling was the "correct and preferable" decision. (See s 63 Administrative Decisions Tribunal Act 1997 (ADT Act).) In making that determination we must examine the evidence on which Mr Swan based his decision, together with any further relevant evidence which is now available. Relevant legislation 4 In enacting the Education Act 1990 (the 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. (See s 4) 5 The key provisions of the Act applicable to these proceedings are ss 71, 72 and 73. Section 71 sets out the process by which a person's application for registration for home schooling is to be dealt with. Section 71(2) provides that after an application is made, the Minister is to obtain advice on the application from an authorised person. Section 72(1) imposes a duty on the Minister, on receiving the recommendation of an "authorised person", to either register the child or refuse to register the child. The critical provision, s 72(2) states that: (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 a 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. 6 Under s 73(2), the registration of a child for home schooling is subject to certain conditions. One such condition is contained in s 73(2)(b), which requires that the child "receive instruction that meets the relevant requirements of Part 3 relating to the minimum curriculum for schools." Effect of s 72(2) and s 73(2) 7 It is a pre-condition to the registration of a child for home schooling that the Minister be satisfied that the conditions subject to which registration is required to be given, will be complied with. (Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; Boxx v Aquilina [2000] NSWSC 166, 15 March 2000 at [23]). That decision must be made having regard to the recommendation of the authorised person about the application and any decision of the Tribunal. As the respondent pointed out, the statutory duty to "have regard to" a matter requires a decision-maker to take into account that matter and give it weight or consideration as a fundamental element in making the determination. (R v Toohey; ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 333, 338.) Since the Minister has a duty to give weight to the recommendation by the authorised person and to consider it as a fundamental element in making a determination, the recommendation should be consistent with the Minister's duty under s 72(2) to be satisfied that the conditions subject to which registration is required to be given will be complied with. 8 In our view the decision of an authorised officer would not be the "correct and preferable decision" unless the conditions subject to which registration is required to be given will be complied with. One of those conditions is that the child is to receive instruction that meets the relevant requirements of Part 3 relating to the minimum curriculum for schools. The fact that this condition is expressed in the future tense means that it relates to a future, not an existing, state of affairs. The authorised officer (and ultimately the Tribunal) does not need to be satisfied that an applicant currently complies with any conditions, merely that those conditions will be complied with if the application for home schooling is approved. Evidence relevant to recommendation 9 Mr Swan based his recommendation both on the material that was before him and, indirectly, on the material that was before Mr McPherson, another "authorised person" who prepared a report dated 25 July 2003 on which Mr Swan's recommendation was based. That material consisted of: · an interview in Ms Dao's home (there is no transcript or notes of the content of this interview); · overview for a Unit of Work on each key learning area; · diary entries for 25-29 August 2003; and · samples of painting activity.