DMM v Board of Studies, Teaching and Educational Standards (No. 2) [2016] NSWCATAD 260

DMM v Board of Studies, Teaching and Educational Standards (No. 2) [2016] NSWCATAD 260

Although the plain meaning of "child" in ss 71 and 72 of the Education Act 1990 refers to a person under 18, those provisions are the functional equivalent of school enrolment provisions and speak as at the time of the parent's application for registration and the registration process, not so as to prevent educational continuity merely because the student turns 18 before the period of registration runs. DMM applied and the adverse recommendation and internal review occurred before ER turned 18, and ER could have been registered while still a minor. Reading ss 71 and 72 with the Act's objects, including allowing home education and mitigating educational disadvantage and providing special...

Jurisdiction
Australia
Judgment Date
18 November 2016
Procedural Posture
Administrative Review of a Recommendation to Refuse Home Schooling Registration / Principal Judgment
Outcome
The Tribunal made a different recommendation in place of the respondent's recommendation to refuse registration: ER is to be registered as a home schooling student. Publication restrictions were also ordered.
Legal Topics
['home Schooling Registration' 'meaning of "child" in Ss 71 and 72 of the Education Act 1990' 'registration of a Student Who Turned 18 After Application' 'merits Review' 'publication Restriction']
['education Law' 'administrative Law' 'statutory Interpretation'] ['home Schooling Registration' 'meaning of "child" in Ss 71 and 72 of the Education Act 1990' 'registration of a Student Who Turned 18 After Application' 'merits Review' 'publication Restriction']

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Procedural Posture

Administrative Review of a Recommendation to Refuse Home Schooling Registration / Principal Judgment

Legal Issues

  1. 1 ['Whether the word "child" in ss 71 and 72 of the Education Act 1990 includes a person over the age of 18.' 'Whether ER could be registered for home schooling where the application and review steps occurred before ER turned 18 but the registration period would run after ER turned 18.' "What recommendation was the correct and preferable recommendation on review of the authorised person's recommendation to refuse registration."]

Ratio Decidendi

Although the plain meaning of "child" in ss 71 and 72 of the Education Act 1990 refers to a person under 18, those provisions are the functional equivalent of school enrolment provisions and speak as at the time of the parent's application for registration and the registration process, not so as to prevent educational continuity merely because the student turns 18 before the period of registration runs. DMM applied and the adverse recommendation and internal review occurred before ER turned 18, and ER could have been registered while still a minor. Reading ss 71 and 72 with the Act's objects, including allowing home education and mitigating educational disadvantage and providing special...

Court Disposition

The Tribunal made a different recommendation in place of the respondent's recommendation to refuse registration: ER is to be registered as a home schooling student. Publication restrictions were also ordered.

Orders

  • ['Instead of the recommendation of the Board of Studies, Teaching and Educational Standards that DMM be refused home schooling registration under ss 71 and 72 of the Act for ER, the tribunal makes the following recommendation: That ER be registered as a home schooling student.' 'Pursuant to s 64 of the Civil and...