Alex Kohn
20 September 2012

Board of Education Cancels School Registration – Criminal Liability of Principal

Alex Kohn

Partner And Chairman

Tel: 02 9233 9036

Mob : 0421 315 168


Dispute Resolution


Charities and Not-For-Profits Dispute Resolution



Employment, Professional Conduct and Safety

Strike First – Cancellation by the Board

The Board of Studies has recently recommended to the Minister for Education that ANC High School Pty Ltd (School) have its non-government school registration (license to operate) and accreditation cancelled, the result of which being that the school could no longer nominate candidates to be awarded a Higher School Certificate.

Strike Back – Legal Proceedings by the School

The School applied to the Administrative Decisions Tribunal for a review of those decisions, continued to operate during the legal proceedings and was ultimately successful but on a limited basis and not to the extent they had hoped.

Strike Force – Three Reasons for dispute

The Board of Studies based their recommendation to the Minister for Education on findings that the School failed to provide an appropriate education program quality, failed to keep proper enrolment and attendance records and as a result also failed to provide a safe and supportive environment for students.

Enrolment and attendance: The School argued and the Tribunal agreed that failure to keep appropriate records was not a condition of registration but a criminal offence for which the Principal not the School could be found to be personally liable.

Safe and supportive environment: The School argued that the keeping of an enrollment and attendance record was not a requirement in the provision of a safe and supportive environment. The Tribunal agreed but noted that the implementation of an absenteeism policy was a relevant and essential matter.

Program Quality: The Tribunal was particularly critical of the School drop out rates, the majority of students obtaining the lowest possible band scores for HSC subjects, consistently failed assessments, classes being offered with below minimum contact hours and inconsistent policies regarding the requirement to complete any homework.

Strike Out – Why Both Parties Lost

The Tribunal found that the recommendations from the Board of Education to the Minister for Education were an exercise of discretion and in the circumstances, while serious concerns had been identified, appropriate use of that discretion supported outcomes less severe than immediate cancellation of registration and accreditation.

The Tribunal did, however, impose upon the School a reduction of the renewal period for both registration and accreditation so that both will expire later this year.

Lesson of the day

When an individual or group exercises a decision making power with a level of discretion, it is important to identify:

  • What are the full circumstances relevant to the decision-making process;
  • Who is responsible for the specific conduct/omissions complained of and do those persons (or other persons) have broader duties and obligations under the employment contract; and
  • Is the finding made and severity of any action taken proportionate to the breach.

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