Administrative Decisions Tribunal New South Wales Medium Neutral Citation: ANC High School Pty Ltd v The Board of Studies [2012] NSWADT 125 Hearing dates: 2, 3, 9 & 10 May 2012 Decision date: 29 June 2012 Before: Magistrate N Hennessy, Deputy President A Rice, Non-judicial Member Decision: 1. Instead of the Board of Studies' recommendation to the Minister for Education that ANC High School Pty Ltd's registration as a non-government school be cancelled, the Tribunal makes the following recommendation: That the period of renewal of registration for ANC High School Pty Ltd be reduced so that it expires on 31 December 2012. 2. Subject to order 1, the Tribunal recommends that, instead of the Board of Studies' recommendation to the Minister of Education that ANC High School Pty Ltd's accreditation be cancelled: The period of renewal of accreditation for ANC High School Pty Ltd be reduced so that it expires on 31 December 2012. Catchwords: MERITS REVIEW - decision of the Board of Studies to cancel registration and accreditation of high school - whether alleged non-compliances relating to register of enrolments and attendances constitute requirements for registration - whether non-compliances justify cancellation of registration or accreditation Legislation Cited: Administrative Decisions Tribunal Act 1997 Children and Young Persons (Care and Protection) Act 1998 Commission for Children and Young People Act 1998 Education (General Provisions) Act 1989 (Qld) Education Act 1990 Education Services for Overseas Students Act 2000 (Cth) Evidence Act 1995 Ombudsman Act 1974 Cases Cited: Calvin v Carr [1979] 1 NSWLR 1 Casarotto v Australian Postal Commission (1989) 10 AAR 191; 17 ALD 321; [1989] FCA 116 Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 147 CLR 297 Esso Australia Resources Ltd v FCT (1998) 83 FCR 511 Machon Paull Partners Pty Ltd v Leichhardt Municipal Council (1981) 44 LGRA 1 McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354 Morton v The Union Steamship Company of New Zealand Ltd (1951) 83 CLR 402 Ombudsman v Laughton (2005) 64 NSWLR 114 Public Transport Commission of NSW v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336 R v Commissioner of Patents; Ex parte Martin (1953) 89 CLR 381 Sydney Institute of Tertiary Education Pty Ltd v Vocational Education and Training Accreditation Board [2010] NSWADT 209 Category: Principal judgment Parties: ANC High School Pty Ltd The Board of Studies Representation: Counsel D Dinnen (Applicant) S Gray (Respondent) John Allanson & Associates (Applicant) I V Knight, Crown Solicitor (Respondent) File Number(s): 113208 REasons for decision Introduction 1On 28 June 2011 the Board of Studies recommended to the Minister that ANC High School Pty Ltd's registration be cancelled and, subject to that decision, that its accreditation should be cancelled. Registration is a non-government school's licence to operate. Accreditation authorises a non-government school to nominate candidates for the award of the Higher School Certificate. 2ANC has applied to the Tribunal for a review of those decisions. It has continued to operate pending the Tribunal's decision. There are currently approximately 30 students enrolled at ANC in Years 11 and 12. 3On 1 January 2008 ANC was registered as a non-government school and accredited to present candidates for the Higher School Certificate. All the students enrolled at ANC are overseas students, mostly from China. 4The Board of Studies is constituted by the Education Act 1990 (the Act) and has various functions under that Act including registering and accrediting non-government schools. All references to provisions are references to provisions in that Act unless otherwise stated. 5The Tribunal has jurisdiction to review both the registration and the accreditation decisions: s 107(1)(c) and s 107(1)(f). The Tribunal does not have jurisdiction to review a third decision made by the Board to cancel the approval of ANC High School to provide courses for overseas students. Grounds for decisions 6In a letter dated 1 July 2011 the Board summarised the grounds for its decisions. In relation to the recommendation to cancel ANC's registration, the Board said: . . . the Board found that the School does not comply with the requirement for registration as determined by the Act and detailed in the Manual for the provision of a safe and supportive environment (section 3.6 of the Manual) 7We will refer to this ground as the failure to provide a safe and supportive environment ground. 8In relation to the decision to cancel ANC's accreditation: . . the Board found that the School does not comply with the requirements for accreditation as determined by the Act for the curriculum for the HSC, in particular the quality of the educational program (section 5.3 of the Manual). The Board also found that the School does not comply with the requirements of the Act relating to attendance (section 3.8 of the Manual). 9We will refer to these grounds as the quality of the educational program ground and the attendance ground. 10The grounds were described slightly differently in the internal review decision made on 20 June 2011, ten days prior to the Board's decision. The internal review report considered registration and accreditation under the same heading and dealt with all three grounds under that heading. The internal review report also specifically referred to s 24 of the Act which makes it an offence to fail to keep, in an approved form, a register of enrolments and attendances. The Board did not refer to that provision in its decision. 11The Act deals with the requirements for registration in Part 7 and the requirements for accreditation in Part 8. The requirements are different and discrete. The Tribunal must consider each decision separately, based on the relevant requirements in the Act. Tribunal's powers and role 12The Tribunal's powers following review are set out in s 108. They exclude the powers given to the Tribunal under s 63 of the Administrative Decisions Tribunal Act 1997 (ADT Act). In relation to the decision to recommend cancellation of the Board's registration, the Tribunal may confirm the recommendation, set it aside or make a different recommendation to the Minister. One example of a different recommendation is a recommendation under s 57A that the period of registration be reduced and that the registration is to have effect on a provisional basis for the reduced period. 13In relation to the decision to cancel ANC's accreditation, the Tribunal may confirm the decision or recommend to the Minister that the Minister not cancel the accreditation: s 108(1)(d). While the Tribunal has no express power to reduce the period of accreditation, in general the period of accreditation of a non-government school is to correspond to the period of registration of the school: s 87(2). 14The Tribunal's role is 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). 15ANC submitted that when making its decision the Tribunal should have regard to an alleged lack of procedural fairness on the Board's part when it made the decisions and an alleged failure by the Board to take into account relevant considerations. The relevant considerations were said to be: the fact that ANC "had been marked 'compliant' in every audit area just six months before the 11 November 2010 inspection"; and that the Board had failed to provide any information as to the number or seriousness of non-compliances that would justify their decisions. 16The Tribunal's role is to conduct a merits review, not a judicial review, of the Board's decision. If the Board denied ANC procedural fairness or failed to take into account a relevant consideration, they are not matters which the Tribunal can take into account: Calvin v Carr [1979] 1 NSWLR 1, pp 8 and 9, Ombudsman v Laughton (2005) 64 NSWLR 114, [47] (Basten JA). The Tribunal makes a new decision based on the material presented at the hearing. 17When conducting a 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 (Woodward J). Rather, 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: ADT Act, s 73(2). 18The Board must given reasons for its decisions. Those reasons must sufficiently particularise the basis for the decision to enable ANC to understand the decision and respond to it. The Tribunal does not conduct an audit of ANC's operations to determine whether it should be registered and accredited. The review of the Board's decision is based on the non-compliances identified in the Board's reasons at the time of the decision or subsequently. There is a practical onus on ANC to address the matters that it is on notice of and which have been sufficiently particularised: Casarotto v Australian Postal Commission (1989) 10 AAR 191; 17 ALD 321; [1989] FCA 116, [51] (Hill J); Sydney Institute of Tertiary Education Pty Ltd v Vocational Education and Training Accreditation Board [2010] NSWADT 209, [43]. 19While not bound by the rules of evidence, the standard of proof we should apply is "on the balance of probabilities" as set out in 140 of the Evidence Act 1995. Legislative basis for cancellation of registration 20The Minister may, on the recommendation of the Board, cancel the registration of any non-government school: s 59(1). The test for cancellation is set out in s 59(2): The Minister may not do so unless the Minister is satisfied that the requirements for registration are not being complied with at the non-government school. 21That is the test that the Tribunal must apply to determine whether the recommendation to the Minister to cancel ANC's registration should be confirmed, set aside or whether a different recommendation should be made. The Minister and the Board have a discretion not to recommend cancellation or, in the case of the Minister, not to cancel registration, even if satisfied that the requirements for registration are not being complied with. Similarly the Tribunal, standing in the shoes of the Board, has discretion to recommend or not recommend cancellation in those circumstances. Although the test in relation to reducing the period of registration is worded slightly differently, its effect is the same: s 57(3) and s 57A(2). 22The requirements for the registration of a non-government school are set out in s 47. That provision begins by providing that: For the purposes of this Act, the requirements for the registration of a non-government school are as follows: 23Twelve "requirements" are listed in s 47(a) - (l). The only requirement on which the Board relied in making its decision was the requirement in s 47(g): (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 Division 2 of Part 7 of the Commission for Children and Young People Act 1998, and (iii) school policies and procedures that ensure compliance with relevant notification requirements imposed in relation to persons employed at the school by Part 3A of the Ombudsman Act 1974 and Part 7 of the Commission for Children and Young People Act 1998 24Section 131 gives the Board power to make rules. Pursuant to that provision the Board has published the Registered and Accredited Individual Non-Government Schools NSW Manual (the Manual). Issues in relation to cancellation of registration 25The issues in relation to the recommendation to cancel registration can be summarised as follows: (1)Issue 1: Does the failure of a school to keep a register of enrolments and attendances in the approved form constitute non-compliance with the "requirements for registration"? (2)Issue 2: Are the arrangements ANC makes to accommodate overseas students part of the requirements for registration? (3)Issue 3: Does ANC provide a safe and supportive environment for its students as required by s 47(g) of the Act and 3.6 of the Manual? (4)Issue 4: If ANC is not compliant with any of the requirements for registration, has the Board made the correct and preferable decision in recommending cancellation of ANC's registration? Issue 1: Register of enrolments and attendances 26The Board relied on an alleged failure by ANC to keep a register of enrolments and attendances in the approved form as a ground for recommending cancellation of ANC's registration. In making that submission the Board argued that keeping those registers is critical to providing a safe and supportive environment as required by s 47(g). In addition, 3.8 of the Manual states that: "A registered non-government school must keep a register of enrolments and daily attendances of all children at the school." 27The Board submitted that the keeping of a register of enrolments and attendances is a matter which is inextricably bound up with a non-government school's obligation to provide a safe and supportive environment as required by s 47(g). One of the justifications for that submission was that a school could not satisfy its obligation to provide a safe and supportive environment if it could not be sure that every student was accounted for. 28ANC disagreed on the basis that failure to keep a register of enrolments and daily attendances in the approved form is a criminal offence under s 24 and not a "requirement of registration" as defined in s 47(g). That was said to be the case despite the inclusion of such a requirement in the Manual. 29We agree with ANC's submission that s 24 does not contain any requirements of registration and that s 47(g) does not incorporate s 24. Furthermore the Manual cannot lawfully make the keeping of a register of enrolments and attendances a requirement of registration as that is inconsistent with the Act. 30Section 24 makes it a criminal offence for the principal of a school, as distinct from the proprietor, not to keep a register in a form approved by the Minister, of the enrolments and daily attendances of all children at the school: (1) The principal of a government school or 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. (1A) The register is to contain any notification given (or particulars of any notification given) about the absence of a child from school under section 23 (3) (a). (2) The register must be available for inspection during school hours by a Board inspector or by any authorised person, who may require the principal of the school to furnish a copy of the register or any part of it. (3) When required to do so by the Minister, the principal of a government school or registered non-government school must furnish to the Minister information, within a time and in a form approved by the Minister, concerning the following: (a) the enrolment and attendance of children at the school during a specified period, (b) any unsatisfactory school attendance by children of compulsory school-age enrolled at the school. (4) The particulars of enrolments and daily attendances recorded in a register under this section must be retained for such period as the Minister may determine. (5) A principal of a government school or registered non-government school who, without reasonable excuse, fails to comply with a requirement imposed by or under this section is guilty of an offence. Maximum penalty: 5 penalty units. 31Section 24 is in Part 5 of the Act; s 47 is in Part 7. While the general principle is that provisions should be interpreted in the context of the Act as a whole, dividing an Act into parts often has some significance. If an Act is divided into parts, it can be assumed that each part is intended to deal with a different subject matter. When interpreting legislation, a provision in one part of the Act should not be read as relating to a provision in another part of the Act unless it is clear from the wording of the section that it must be read in that way: Machon Paull Partners Pty Ltd v Leichhardt Municipal Council (1981) 44 LGRA 1 at 5. 32Section 24 is a penal provision. A principal of a school commits a criminal offence punishable by a fine if he or she fails to comply with that provision. The provision places no duty or obligation on the proprietor of the school. In this case, it is apparent that Part 7, relating to the registration of non-government schools, is a separate and self-contained part of the Act. There is no apparent connection between Part 7 and the criminal sanction in s 24 which is in Part 5 headed "Attendance of Children at School". 33An example of a provision in Part 7 which does relate to a provision in another part of the Act is s 47(j). That provision makes it a requirement of registration to comply with minimum curriculum standards set out in Part 3 of the Act. Section 47(j) expressly picks up provisions in Part 3. If the intention of the legislature were to include as a requirement for registration, the obligation to keep a register of enrolments and attendances, s 47 would have referred to s 24 of the Act. Alternatively, s 47 would have included an express obligation about the keeping of an enrolment and attendance register. 34Section 47 is expressed to be an exhaustive list of the requirements for registration. It states that, "For the purpose of this Act, the requirements for the registration of a non-government school are as follows:". There is no reference to "other matters" which the Board or the Minister may take into account. 35Three ways in which a non-government school is to achieve a safe and supportive environment are listed in s 47(g). Those matters all relate to policies and procedures for the welfare of students and for child protection. That list is not exhaustive. There may be other matters which are essential to the provision of a safe and supportive environment. Indeed, we have concluded, later in these reasons, that a policy relating to absenteeism, including the implementation of such a policy, is one such matter. But, in the context of the whole Act, the keeping of registers of enrolments and attendance is not. 36We do not accept the Board's submission that if the obligations imposed by s 24(1) were not to be regarded as a registration requirement anomalous results would arise. One example of an anomaly was said to be that if a school were to fail to keep any form of enrolment or attendance register, it would be under no obligation to disclose that fact to the Board when applying to renew its registration. 37Referring to the consequences of interpreting legislation in a particular way is another way of describing the purposive approach to statutory interpretation: Pearce & Geddes, Statutory Interpretation in Australia, 6th edition, Butterworths, [2.35]. The Board suggested that the consequences of interpreting the Act in the way suggested by ANC would be anomalous. It did not submit that those consequences were 'absurd', 'extraordinary', 'capricious' or 'irrational': Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 147 CLR 297, per Mason and Wilson JJ. 38The interpretation suggested by ANC gives each provision full effect. This is not a case where the language of s 47 means that it can be construed in more than one way or that a manifest injustice will occur if it is interpreted as suggested by ANC: Public Transport Commission of NSW v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336 at 350. Indeed, there are likely to be differing views as to whether the consequences foreshadowed by the Board are anomalous: Esso Australia Resources Ltd v FCT (1998) 83 FCR 511 per Black CJ and Sundberg J at 518-519. 39The final question in relation to this issue is whether the Manual, being a rule made under the Act, lawfully adds a requirement to keep registers as a requirement of registration. 40Pursuant to s 131, the Board may make rules "not inconsistent with" the Act. The Board acknowledged and provided evidence that ". . . the Manual is a rule made by the [Board] under s 131 of the Act, and is a rule that sets out guidelines with respect to the requirements for registration and accreditation of non-government schools within the meaning of s 131(1A)." We note that the guidelines relate to the requirements for registration and accreditation "set out in Parts 7 and 8": s 131(1A). 41The Manual sets out under Part 3, the "Requirements for Registered Non-Government Schools". Each of the twelve matters listed in s 47 is dealt with in Part 3. For example, 3.6 elaborates on the things that a non-government school must do in order to comply with the requirement for a safe and supportive environment. Sections 3.6.1, 3.6.2 and 3.6.3 relate to policies and procedures for child protection, student welfare and students who are learning by means of distance education: s 47(k). There is no reference in 3.6 of the Manual to keeping a register of enrolments and attendances. That issue is dealt with under the separate heading of "Attendance" at 3.8: A registered non-government school must keep a register of enrolments and daily attendances of all children at the school. The Act requires that the principal of a registered non-government school keep a register of enrolments and daily attendances of all children at the school. The register of enrolments and/or the register of daily attendances may be maintained in print or electronic form. The attendance registers must be in a form approved by the Minister for Education. In 2010 the Minister approved a common code for the attendance registers of all New South Wales schools. The codes must be used from the start of the 2012 school year. The codes for use in either manual attendance registers or electronic attendance registers are published on the websites of the NSW Association of Independent Schools (AIS) and the NSW Catholic Education Commission (CEC). 42The Manual purports to make a matter to which criminal liability attaches in s 24 a "requirement of registration". It is not a requirement of registration pursuant to s 47(g), nor is it a requirement set out in any other provision of s 47. 43Because the obligation to keep a register is not a requirement of registration set out in either Part 7 or Part 8 of the Act, 3.8 of the Manual is beyond power. It is repugnant to the Act because it purports to add a requirement for registration in circumstances where s 47 describes those requirements exhaustively: Morton v The Union Steamship Company of New Zealand Ltd (1951) 83 CLR 402; R v Commissioner of Patents; Ex parte Martin (1953) 89 CLR 381. In accordance with a principle enunciated by Pearce and Argument, the Act has, in effect, covered the field on the issue of the requirements of registration. To supplement those requirements in the Manual is an attempt to interfere with the expressed wishes of the legislature: Pearce & Argument, Delegated Legislation in Australia, 3rd ed LexisNexis Butterworths 2005 at 223. 44Further, 3.8 of the Manual is not government policy within the meaning of that term in s 64 of the ADT Act because that part of the policy is contrary to law. It purports to add a requirement for registration that does not exist in the Act. 45For these reasons the keeping of a register of enrolments and attendances is not a requirement of registration and cannot be taken into account when determining whether the decision to recommend cancellation of ANC's registration is the correct and preferable decision. Issue 2: Are the arrangements ANC makes to accommodate overseas students part of the requirements for registration? 46The arrangements ANC makes to accommodate overseas students are not part of the requirements for registration in s 47. The approval for schools to enrol overseas students is regulated by the Education Services for Overseas Students Act 2000 (Cth) and the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007. The Board has also produced Guidelines for Approval NSW School Providers Delivering Courses to Overseas Students. Under section 3.11 of the Guidelines, an approved school provider is required to approve the accommodation and welfare arrangements for any student it enrols who is under 18 years of age and not living with a parent or relative. 47Despite the fact that a significant amount of evidence went to issues relating to the guardianship and accommodation arrangements for overseas students, particularly those under the age of 18, those matters cannot be considered as part of any decision about registration or accreditation. Issue 3: Safe and supportive environment Introduction 48Is ANC compliant with s 47(g) of the Act and 3.6 of the Manual? In particular, does ANC provide a safe and supportive environment for students by means which include: a) school policies and procedures that make provision for the welfare of students, and b) persons who are employed at the school being employed in accordance with Division 2 of Part 7 of the Commission for Children and Young People Act 1998, and c) school policies and procedures that ensure compliance with relevant notification requirements imposed in relation to persons employed at the school by Part 3A of the Ombudsman Act 1974 and Part 7 of the Commission for Children and Young People Act 1998. 49The four areas in which the Board submitted that ANC was non-compliant related to: (1)the existence of incorrect legislation in ANC's policy documents relating to child protection; (2)the failure of ANC to require all employees to complete Prohibited Employment Declaration forms; (3)the inconsistency of advice about school hours in ANC's policy documents; and (4)the failure of ANC to implement its policies in relation to a safe and supportive environment including absenteeism. References to incorrect or non-existent legislation 50The Manual lists the relevant legislation relating to child protection namely: (1)the Commission for Children and Young People Act 1998 (which relates to screening of employees who wish to engage in child related employment); (2)the Children and Young Persons (Care and Protection) Act 1998 (which sets out the responsibilities of the Community Services agency in relation to child protection); and (3)the Ombudsman Act 1974 (which requires schools to notify the Ombudsman of any allegations of reportable conduct or convictions for reportable conduct against an employee). 51Under the heading "Evidence of Compliance" in 3.6.1, the Manual sets out the evidence required to establish compliance. So far as is relevant to these proceedings, those matters are: Evidence of compliance A registered non-government school must have policies and procedures in place to: ensure that staff who have direct contact with students are informed of the legal responsibilities related to child protection, mandatory reporting and other relevant school expectations ensure that requirements to notify and investigate allegations of reportable conduct in compliance with the Ombudsman Act 1974 are made known to staff ensure that the school meets the employment screening and notification requirements of the Commission for Children and Young People Act 1998 ensure that all staff, volunteers, outside tutors and external providers are informed of their obligations under the Commission for Children and Young People Act 1998 respond to reportable matters in accordance with legislative requirements ensure that all staff who are mandatory reporters under the Children and Young Persons (Care and Protection) Act 1998 are informed of their obligations and the process that the school has in place in relation to mandatory reporting. 52ANC has produced an Organisational Policy and Procedures Manual (OPPM). Part of that document seeks to comply with the requirement to have the above policies and procedures in place. However, the OPPM contains numerous references to Queensland legislation, several references to repealed legislation and a few references to legislation which does not correspond with the name and date of any federal, state or territory Act. In all there were 48 references to incorrect or non-existent legislation over about 127 pages in the OPPM. Those mistakes were in sections of the OPPM relating to reporting guidelines when a person receives a complaint of child abuse or harm and to the guidelines in relation to child protection. 53The Board produced a table setting out the areas where the OPPM is inconsistent with or not in accordance with relevant legislation. The Board also produced a detailed summary of the inconsistencies and inaccuracies in the OPPM as they relate to child protection. We accept the accuracy of both those documents. Some of the inconsistencies and inaccuracies are described below. 54Under the heading "Overview of General Commitments" in the OPPM at p 59, it states that employees must be committed to complying with all applicable Australian laws. Australian laws are defined to include "mandatory reporting of sexual abuse or suspected sexual abuse of a current student by a current employee". The reference to the relevant Australian law is the Education (General Provisions) Act 1989, s 1468. That legislation is Queensland legislation and it requires a person to report to various Queensland authorities or the police. 55Later in the OPPM, at p 63, the correct legislation is identified, namely the Children and Young Persons (Care and Protection) Act 1998 and the Ombudsman Act 1974. The OPPM accurately summarises the obligations of the principal to notify the Ombudsman of certain conduct. However, the OPPM incorrectly states that that conduct only relates to a child under the age of 16 whereas in fact, the conduct of the employee includes conduct relating to a child under the age of 18: Ombudsman Act, s 25A. As ANC does not have any students less than 16 years of age, the principal would wrongly assume, on the basis of the information in the OPPM, that he was not required to report any conduct by an employee to the Ombudsman in relation to a student at the school. 56Further mistakes appear in the OPPM in relation to the Reporting Guidelines at p 68. The following passages appear: If the Principal receives a report of suspected/alleged/actual harm and the Principal also is aware or reasonably suspects the harm has been caused, the Principal will report the matter to a relevant State authority (ie police). If a staff member becomes aware or reasonably suspects that a student under 18 years attending the school has been sexually abused by an employee of the College, the staff member must immediately give a written report about the abuse or suspected abuse to the Principal. In accordance with s 76AA of the Education (General Provisions) Regulation 2000, the written report must include the following: 57Both these passages are inconsistent with NSW legislation. Under the Ombudsman Act 1974, a designated agency such as a non-government school must notify the Ombudsman of a 'reportable allegation' against an employee, that is, an allegation of 'reportable conduct' as defined in s 25A and s 25C of the Ombudsman Act. Contrary to the impression given in the OPPM, the abuse is not limited to abuse or harm to the actual child. Secondly, it is to be reported to the Ombudsman, rather than the police. Of course, it may be appropriate, depending on the circumstances to also report the conduct to police. The Education (General Provisions) Act 1989 (Qld) relates only to the reporting of sexual abuse. 58Mandatory reporting refers not to any obligation under the Ombudsman Act but to obligations under s 23 of the Children and Young Persons (Care and Protection) Act 1998 and involves the reporting of a child at risk of significant harm from any source. 59As well as containing some incorrect references to legislation, the OPPM has insufficient information about the mandatory reporting obligations of teachers in relation to children at risk of significant harm under the Children and Young Persons (Care and Protection) Act 1998. While that Act is mentioned, the OPPM does not provide detailed information about the procedures to be followed. 60Ms Shead, the founding principal of ANC and currently a part-time advisor to the school, was responsible for the original version of the OPPM. She admitted that the mistakes she made in identifying the correct legislation have been continued in later versions. While she could not remember exactly how the mistakes came about, she speculated that she would have done a "google" search and copied the policies from another school in NSW. That does not satisfactorily explain the references to Queensland legislation. 61We are satisfied that parts of the OPPM direct ANC staff to comply with the wrong legislation or to take steps that are not consistent with, and in some cases which are contrary to, the correct legislation. We have concluded on the basis of all the evidence including the analysis provided by the Board, that the OPPM has some inaccuracies which would be likely to mislead staff as to the precise nature of their obligations relating to child protection. Completion of prohibited person declaration 62A second example of alleged non-compliance with s 47(g) was said to be that ANC has not ensured that it is providing a safe and supportive environment in relation to employment screening. Section 47(g)(ii) requires ANC to ensure that staff are employed in accordance with Division 2 of Part 7 of the Commission for Children and Young People Act 1998 (CCYP Act). Section 3.6.1 of the Manual lists, as evidence of compliance with s 47(g), ensuring that the school meets the employment screening and notification requirements of the CCYP Act. 63Section 33D of the CCYP Act makes it an offence for an employer to commence employing a person in child-related employment without first requiring that person to disclose whether or not he or she is a prohibited person. Disclosure is sometimes made through a document entitled "Prohibited Employment Declaration". An employer is also required to carry out background checking for people commencing paid work that primarily involves direct and unsupervised contact with children under the age of 18: CCYP Act, s 37. 64During cross-examination, Mr Wakeling, the principal of ANC, was shown a blank copy of a document headed "Prohibited Employment Declaration" at page 184 of the OPPM. He was asked whether he signed a form like that before starting work at ANC. His answer was that "We did a child protection - working with children check." He said it was not necessary for him to fill in a Prohibited Employment Declaration and he had never signed such a document. 65The Board also questioned Ms Wang, the Administration Manager at ANC, as to whether she had signed a Prohibited Employment Declaration. Her evidence was that she did not know whether she had signed such a form. 66ANC provided evidence that they had requested the NSW Department of Education and Communities to provide "Working with Children Background Checks" for nine employees including Mr Wakeling and Ms Wang. The Department notified ANC in each case that the background check found no information to suggest that the applicant posed a particular risk to children. 67The Board submitted that Mr Wakeling's failure to complete a Prohibited Employment Declaration is inconsistent with s 33D(1) of the CCYP Act. That constitutes a non-compliance with s 47(g)(ii) which requires that staff be employed in accordance with Division 2 of Part 7 of that Act. Section 33D(1) is in that Division. School hours 68A third matter that was said to relate to the provision of a safe and supportive environment was inconsistencies in policy documents as to the hours that students were required to attend school. 69In various places, the OPPM indicated that the school hours were from 9am to 3.00pm (OPPM p 29); 9.00am to 4.30pm (Student Handbook 2012, p 305) and 9.10am to 4.00pm (Student Handbook 2012, p 306). 70Ms Shead's response to these inconsistencies was that when students attend orientation they are told the correct times and given a timetable. Mr Wakeling also acknowledged that the information in the OPPM and the Student Handbook was inconsistent with the timetables that students were given at orientation. 71ANC submitted that the inconsistencies in relation to school hours in the OPPM, the Student Handbook and the timetable do not amount to non-compliance with the requirements of registration. We agree. There is nothing in the Act or the Manual about accurately communicating school hours. For the environment to be safe, students need to be adequately supervised when at school. Inaccuracies may lead to confusion about the times that students are required to attend. However, we are not satisfied that students were at school unsupervised because of a misunderstanding about those hours. On the contrary, the oral evidence, which we accept, was that students knew the hours that they needed to attend from the timetables they were given at orientation. Failure of ANC to implement its policies in relation to a safe and supportive environment 72The Board raised eight matters under this heading all of which will be or have been addressed elsewhere in this decision. The only outstanding matter is the implementation of policy in relation to absenteeism. 73We accept that although the requirement to keep a register of attendances is not a "requirement of registration", the provision of a safe and supportive environment in s 47(g) includes policies, and their implementation, relating to absenteeism. 74The Board had no criticism of ANC's policies in the OPPM in relation to monitoring and enforcing attendance and dealing with absenteeism. Those policies reflect, and in some respects augment, the requirements in the Manual. However the Board did take issue with the implementation of those policies. In particular, the OPPM states that "Students must account for all absences. All medical absences must be supported by a "Medical Certificate" from a registered Medical Doctor. Dubious certificates from non-MD's will not be accepted." 75ANC relied on a copy of the current attendances register, data from 2010 and 2011, copies of emails and letters sent to enforce attendance and oral evidence. For the first five weeks of 2012, the Board analysed the data relating to attendance. We accept that analysis. For the Year 11 students, out of a possible 3,780 periods of attendance, students were present for 1,936 periods, absent for 1,659 periods and there were a further 185 periods of absence for a flexible timetable. For Year 12 students, out of a possible 2,520 periods, students were present for 1,315 periods, absent for 815 periods and there were a further 390 periods of absence for a flexible timetable. 76Mr Wakeling described the level of absenteeism with overseas students as "an ongoing challenge". He gave evidence that every Monday he sends emails to students asking them to explain their absences. He provided examples of such emails and said that if he did not receive a response, or the absence was unexplained, he recorded that fact on the attendance register. 77Despite this evidence, Mr Wakeling produced only one email which was actually addressed to a student for which he had received a reply. The student in that case gave as the reason for being absent on two days, "part-time job". The reason for being absent for another four days was said to be through "sickness". This student, YW, was marked present on the roll for some of those days. 78Mr Wakeling produced other emails which he purportedly sent to students but for which no response was provided. We doubt whether these emails were actually sent. Apart from the email referred to in the previous paragraph, none of the emails contain the email address of the student. If they were sent, several were sent incorrectly because the student was recorded as being present on one or more of the days identified in the emails. One of the emails which was purportedly sent to a student, RC, requests an explanation for absences on 8 and 15 February 2012. In the attendance register that student was marked present on those days. Mr Wakeling's explanation was that he sent the email too early as it was based on a draft of the attendance register. We do not find that explanation convincing. 79As well as inconsistencies with the attendance records and emails, ANC's attendance records for the first 5 weeks of 2012 were inconsistent with other documents. For example, assessment papers show students completing assessments when they were marked absent. 80ANC says that it cannot provide a reason for absence if the student has not volunteered a reason. 81Mr Wakeling went on to say that when a student's projected rate of attendance fell below 85%, he sent him or her a warning letter. Examples were provided. If the poor rate of attendance persists, Mr Wakeling says he sends a second letter asking the student to meet with him. Two records of counselling sessions held with students in 2011 were provided. Finally, in relation to students whose attendance does not improve, a letter is sent notifying the student of an intention to report him or her to the relevant Commonwealth Department. Examples of such letters were provided. 82The lack of evidence from students as to their reasons for absence is reflected in the attendances register. The only two reasons for absences recorded in the register are that the student has a flexible timetable and is not required to attend at that time (F) or that the absence is unexplained (A). There is no instance of the absence being recorded as being due to sickness or medical reasons (S) or as having been approved for some other legitimate reason (L). All absences, other than for a flexible timetable were "unexplained". 83The rate of absenteeism is extraordinarily high. While we acknowledge that requiring international students to attend regularly may be challenging, the incidents of unexplained absences is chronic. Contrary to Mr Wakeling's evidence, we are not satisfied that he routinely sends emails to students each week requesting an explanation for any absence. Nor are we satisfied that the register of attendances accurately records students' attendance or the reason for non-attendance. Monitoring of attendance needs to be more accurate and strategies need to be implemented to change what appears to be a culture of absenteeism. The policy that students must account for all absences is not being implemented. As a result, ANC is not providing a safe and supportive environment for students. Issue 4: Is the recommendation to cancel ANC's registration the correct and preferable decision? 84There are three ways in which we have found ANC to be non-compliant with providing a safe and supportive environment to students. The OPPM refers to wrong or non-existent legislation in relation to child protection, ANC did not comply with s 33D of the CCYP Act in relation to Mr Wakeling and ANC has effectively condoned an unacceptable level of unexplained absenteeism. 85ANC submitted that even if the Tribunal finds that it is non-compliant with its obligation to provide a safe and supportive environment to students, that non-compliance is not significant enough to justify a recommendation to cancel its registration. ANC submitted that the correct and preferable decision would be to set aside the Board's recommendation. Alternatively, ANC's registration should be reduced to a period ending on either 31 December 2013 or 31 December 2012. The Board's submission was that the recommendation should be confirmed. 86There is no guidance in the Act or in any other publication as to the circumstances in which cancellation of registration is justified. The Minister, the Board and the Tribunal all have a discretion not to recommend cancellation, or not to cancel a school's registration, even if the school has failed to comply with a requirement of registration. It follows that we may regard certain non-compliances as not justifying a recommendation to cancel ANC's registration. 87ANC asked the Tribunal to provide guidance as to the circumstances in which cancellation will be justified. The nature and frequency of any non-compliance and, most importantly, its effect on students are relevant matters. It is also relevant for the Tribunal to consider the likelihood that any non-compliance will continue. An indication as to that matter will be the school's history in rectifying non-compliances as they have been raised. 88Before being questioned about the inaccuracies in the OPPM, Ms Shead agreed, hypothetically, that such inaccuracies would not be acceptable. Mr Wakeling also agreed, in the abstract, that it is extremely important for a school's policies to refer to the correct legislation. When questioned directly about the inaccuracies in the OPPM, both Ms Shead and Mr Wakeling admitted that they were not aware that the OPPM contained errors. However, the opinions of ANC employees in relation to the seriousness of any non-compliances are not determinative of those issues. That is a matter for the Tribunal to determine. 89In relation to the inconsistencies and inaccuracies in legislation referred to in the OPPM, the effect of those errors is that staff were not given a totally accurate and comprehensive guideline in relation to the circumstances in which they should report a matter to the Ombudsman, to Community Services or the police. It is important for staff to be aware of the correct policies and procedures to be followed in relation to child protection and for those policies to be implemented. The OPPM did succeed in conveying the message that certain conduct and other matters needed to be reported. It was deficient in relation to questions of detail. 90We do not know whether there has been any adverse effect on a student as a result of these errors and omissions. 91This is one of the matters that was raised for the first time at the hearing. ANC was not on notice that this would be an issue and has not had an opportunity to amend its policy. In all the circumstances, we do not consider that this issue justifies a recommendation to cancel ANC's registration. 92In relation to ANC's failure to have Mr Wakeling complete a Prohibited Person Declaration, that was a breach of the CCYP Act. However, the evidence satisfies us that Mr Wakeling was subject to a Working with Children Check to ensure that he was not prohibited from working with children. We are satisfied that now that this matter has been drawn to their attention, ANC will comply with the relevant requirements of the CCYP Act. In all the circumstances, we do not consider that this issue, either alone or in combination with the first issue, justifies a recommendation to cancel ANC's registration. 93We have reached a different view in relation to the absenteeism issue. This is a systemic problem that cannot be allowed to continue indefinitely. To say that the issue is a challenging one or that the school cannot make a student give a reason for an absence is not an acceptable response. The culture needs to change before we can be satisfied that ANC is providing a safe and supportive environment. ANC has been on notice of this issue since at least 28 June 2011. At inspections prior to that date, inspectors noted a significantly high level of absenteeism, with reasons for absenteeism not being evident in attendance records. 94ANC's current registration expires on 31 December 2014. Under s 108(1)(a) and (b) the Tribunal may confirm the recommendation or make a different recommendation to the Minister concerning the subject matter of the application. 95The Board (and this Tribunal) has power to make a recommendation to the Minister that the period of renewal be reduced: s 57. The test in relation to that option is essentially the same as for a recommendation to cancel a school's registration, that is, that the Tribunal is not satisfied that the requirements for registration are being complied with: s 57(3). 96In our view a reduction in the period of registration is the preferable decision. The matters raised are significant enough to justify a reduced registration period, but not so significant as to justify immediate cancellation. The period of registration should be reduced so that it expires on 31 December 2012. 97The Board submitted that the Tribunal may make a recommendation to the Minister to reduce the period of registration but only if the procedures relating to the giving of notice to the school in s 57(3) have been met. We do not agree with that proposition. While the Tribunal "stands in the shoes" of the Board, the Tribunal is not the Board. Our role is to review the decision and vary it if the Board would have had power to make the varied decision. The administrative pre-conditions for the making of a decision that apply to the Board, do not apply to the Tribunal. 98We note that if ANC wishes to apply for renewal of its registration, it will be necessary for the Board to waive the requirement that ANC apply for renewal at least 9 months before it is due to expire: s 54A(2). Order 1 Instead of the Board of Studies' recommendation to the Minister for Education that ANC High School Pty Ltd's registration as a non-government school be cancelled, the Tribunal makes the following recommendation: That the period of renewal of registration for ANC High School Pty Ltd be reduced so that it expires on 31 December 2012. Legislative basis for cancellation of accreditation 99The Board may accredit registered non-government schools to present candidates for the Higher School Certificate: s 102(2)(c) and Part 8. Section 91 gives the Board power to cancel a school's accreditation "if the Board is satisfied that the requirements of this Act relating to the courses of study to be undertaken by candidates for the certificate concerned are not being complied with at the school." 100The relevant matters the Board or the Minister must have regard to when considering whether the requirements relating to the courses of study have been complied with are listed in s 92 and include: (a) the record (if any) of achievement by students at the school in the courses, and (b) the standard of teaching of the courses at the school, and (c) the facilities provided or to be provided at the school for the courses. 101Section 92(2) allows the Minister to take into account other matters, including the number of hours allocated at the school for the courses of study concerned, but the matters referred to in subsection (1) (a), (b) and (c) are the principal matters to which the Minister must have regard. 102These provisions embody what is referred to in the Act as the "quality of the educational program". 103Following review, the Tribunal may confirm the Board's decision to cancel accreditation or recommend to the Minister that the Minister not cancel the accreditation: s 108(a) and (d). Unless the Board considers it is not appropriate in any particular case, the period of accreditation of a non-government school is to correspond to the period of registration of the school: s 87(2). 104As is the case with decisions about registration, even if the school does not comply with the standards relating to the quality of the educational program, the Tribunal has a discretion not to recommend cancellation. Issues in relation to cancellation of accreditation 105The issues in relation to the cancellation of accreditation decision can be summarised as follows: (1)Issue 5: Is ANC compliant with s 92(1)(a) and (b) of the Act and 5.3 of the Manual? In particular, have the requirements relating to the courses of study to be undertaken by candidates for the Higher School Certificate been complied with, principally having regard to: (a) the record (if any) of achievement by students at the school in the courses, and (b) the standard of teaching of the courses at the school, and (c) the facilities provided or to be provided at the school for the courses. (2)Issue 6: If ANC is not compliant, has the Board made the correct and preferable decision in cancelling ANC's accreditation? Issue 5: Quality of the educational program Introduction 106Apart from homework policy, the Board did not criticise ANC's policies in relation to the quality of its educational program. The criticism concerned the implementation of those policies. In relation to the record of achievement by students, the Board pointed to the school's poor HSC results and samples of students' work. In relation to the standard of teaching, the Board pointed to inconsistencies in the assessment of students' work. These are the principal matters to which the Tribunal should have regard: s 92(2). Other matters raised by the Board were the number of contact hours for various courses of study and inconsistencies in homework policy. Record of achievement 107The results of students sitting for the HSC is a strong indication of whether a school is providing a quality educational program to those students. ANC provided an enrolment register recording that of 197 students who had been enrolled since 2008, 39 were awarded the HSC. In 2010, one student was awarded the HSC and 14 students withdrew late. 108In 2011, 16 students achieved the HSC and 5 withdrew late. Of the 16 who sat for the HSC in 2011, one was not eligible to receive the HSC. While 15 were awarded the HSC, the standard, particularly in relation to Business Studies, Community and Family Studies and Maths was extremely low. In Business Studies 8/15 students were placed in Band 1. A mark in Band 1 indicates that the student has achieved below the minimum standard expected. The percentage of candidates in the state who receive a mark in Band 1 varies depending on the course and the year. As a generalisation, between about 1% and 5% of students obtain a mark in that band. Band 2 is the next highest band. In total, 13/15 (87%) of students studying Business Studies were placed in Band 1 or Band 2, comprising 13% of the state's candidates. Mr Wakeling agreed that these results were particularly poor. 109The rankings for Community and Family Studies were almost as low. Of the 16 students who sat for that course, 6 were placed in Band 1 and a further 7 were placed in Band 2, giving a total of 13/16 in the two lowest bands. The rankings for General Maths were also very poor with 6/16 in Band 1 and a further 5 in Band 2. Some students achieved Band 5 for Chinese for Background Speakers and General Maths. Two students achieved Band 6, the highest band, for Chinese for Background Speakers. 110The second matter relating to students' record of achievement was a sample of student assessments. ANC provided copies of the assessments which the Board had previously identified as missing following its inspections. Mr Wakeling gave evidence that when he took over as principal in Term 3 of 2011, several Year 11 students were consistently failing their assessments for 2 unit Business Studies. He organised additional classes so that the students could progress to Year 12. Extra assessments were undertaken. 111Three students who completed the assessment, which was an hour long paper, gave identical answers to the majority of questions. There is no doubt that they had copied from one another. Standard of teaching 112The teacher who marked the 2 unit Business Studies assessment gave three students different marks even though their answers were identical. For one answer, the teacher gave three different marks: 1 ½, 2 ½ and 3 out of 4. Other identical answers were also marked inconsistently. Some identical answers were marked consistently. Other matters 113Each 2 unit course for the HSC requires 120 contact hours. To meet that requirement, ANC has a policy of providing 20 hours of contact per week. Mr Wakeling was shown samples of students' timetables which demonstrated that the students concerned could not meet 20 hours per week of course time. Of the 17 students in Year 12, only two were recording the minimum of 20 hours. The rest were not timetabled to be at school for 20 hours. 114Mr Wakeling's response was that students were regularly issued with new timetables so that they could make up hours because of absences or additional course requirements. 115ANC submitted that the few examples shown to Mr Wakeling in cross-examination do not demonstrate that ANC is not providing sufficient contact hours to any student over the course of the whole term. 116ANC was not on notice that this was an issue of concern until the hearing but Mr Wakeling had an opportunity to explain any shortfall in the hours on the timetable. The cross-examination established that ANC has breached its own policy on contact hours. Mr Wakeling's explanation for that situation was not persuasive. It is not credible that students would be regularly issued with new timetables and that hours lost one week would be made up in another week. We are satisfied that the Board's contact requirements, which calculates hours over the entire term, are not being met for every student. 117The final matter in relation to the quality of the educational program was an inconsistency in the policy relating to homework. At one point the OPPM states that homework is to be encouraged and failure to complete homework can result in adverse consequences for students. The School's Staff Manual indicates that a student's assessment should not be dependent on homework. Mr Wakeling and Ms Shead both agreed that ANC should have clear and unambiguous policies and ANC would be failing in its responsibilities if it did not have such policies. Issue 6: Is the decision to cancel ANC's accreditation the correct and preferable decision? 118The same consideration applies to decisions about accreditation as to registration. Those considerations include the nature and frequency of any non-compliance, its effect on students and the likelihood that any non-compliance will continue. 119The record of achievement by students at ANC, particular in relation to the HSC results in three out of five subjects in 2011, is extremely poor. While there was a significant improvement from 2010 to 2011, the record of achievement remains below expectations. 120There was little direct evidence about the standard of teaching but one example provided, which showed that the teacher marked identical answers differently without realising that the students had copied from one another, is also a concern. 121The Board made the point that the requirements in the Act and the Manual are minimum requirements and that ANC has provided documents which should be taken to reflect its 'best practice'. ANC refutes that assertion saying that it did not claim that the documents it put before the Tribunal were its "best case". We accept that submission in relation to the assessments for 2 unit Business Studies. 122The poor quality of ANC's educational program, as reflected in the HSC results, affects students fundamentally. While ANC was not on notice of the specific problems with the assessments prior to the hearing, they are accountable for their students' record of achievement. However, given the radical improvement from 2010 to 2011 and the possible scope for improvement in the 2012 HSC results, we have decided not to cancel the school's accreditation. Section 108 does not give the Tribunal express power to reduce the period of accreditation. In general the period of accreditation of a non-government school is to correspond to the period of registration of the school: s 87(2). 123Having decided to recommend that the period of renewal of registration for ANC be reduced so that it expires on 31 December 2012, the preferable decision in relation to accreditation is that ANC's accreditation not be cancelled but that, subject to order 1 being made in relation to registration, ANC's accreditation should correspond to the period of registration. Order 2 Subject to order 1, the Tribunal recommends that, instead of the Board of Studies' recommendation to the Minister of Education that ANC High School Pty Ltd's accreditation be cancelled: The period of renewal of accreditation for ANC High School Pty Ltd be reduced so that it expires on 31 December 2012. ********** 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: 29 June 2012