QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION:	Jubilee Christian College Limited v Non-State Schools Accreditation Board  [2020] QCAT 31	
PARTIES:	jubilee christian college limited	
	(applicant)	
	v	
	non-state schools accreditation board	
	(respondent)	
APPLICATION NO/S:	GAR427-18	
MATTER TYPE:	General administrative review matters	
DELIVERED ON:	2 January 2020	
HEARING DATE:	20 September 2019	
HEARD AT:	Brisbane	
DECISION OF:	Member Traves	
ORDERS:	The decision of 2 November 2018 to amend the accreditation of Jubilee Christian College Limited by removing the attribute of accreditation to teach year 11 and year 12 is returned to the Non-State Schools Accreditation Board for reconsideration. 
	
CATCHWORDS:	GENERAL ADMINISTRATIVE REVIEW – ACCREDITATION OF SCHOOL – where decision to remove attribute of accreditation to teach years 11 and 12 pursuant to s 65 of the Education (Accreditation of Non-State Schools) Act 2017 (Qld) – whether reg 9(4) of the Education (Accreditation of Non-State Schools) Regulation 2017 complied with – where Australian Christian Education Modules offered for subjects for which QCAA syllabus available – whether school’s educational program for years 11 and 12 compliant.
Education (Accreditation of Non-State Schools) Act 2017, s 11, s 15, s 16, s 19, s 21, s 64, s 65, s 67, s 68, s 70, s 166
Education (Accreditation of Non-State Schools) Regulation 2017, reg 3, reg 4, reg 9
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24

Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616
Shi v Migration Agents Registration Authority (2008) 235 CLR 286	
APPEARANCES & REPRESENTATION:	

Applicant:	
DC Fahl instructed by Clinton Mohr Lawyers	

Respondent:	
MT Hickey instructed by Crown Law	

REASONS FOR DECISION
[1]	Jubilee Christian College Limited (Jubilee) is a rural school offering prep to year 12 both on-campus and by way of distance education, located 75 kilometres from Cairns on the Atherton Tablelands in Far North Queensland. Jubilee has filed an application in the Tribunal seeking review of a decision by the Non-State Schools Accreditation Board (the Board) to remove an attribute of the accreditation of Jubilee. In particular, applies to have reviewed the decision to remove the attribute of accreditation to teach years 11 and 12 of schooling in the modes of delivery for classroom and distance education.
[2]	The relevant original decision by the Board was that made on 2 November 2018. At that time, the Board determined that Jubilee did not comply with s 9(4) of the Education (Accreditation of Non-State Schools) Regulation 2017 because it offered subjects for which a QCAA syllabus existed but did not implement that syllabus and/or did not implement a program endorsed by the Queensland Curriculum and Assessment Authority (QCAA) as appropriate for senior secondary education. The Board issued an Information Notice to Jubilee pursuant to s 70(3) of the Education (Accreditation of Non-State Schools) Act 2017 (Qld) (the Accreditation Act) to amend the school’s accreditation by removing year 11 and 12 years of schooling in the modes of delivery for classroom and distance education as relevant attributes of attribution.
[3]	On 29 November 2018 Jubilee applied to review that decision in the Tribunal. The position of Jubilee is that it has implemented the syllabus for year 11 and intends to implement the syllabus for both years 11 and 12 by the commencement of 2020. It submits that, “for intents and purposes, the QCAA syllabus has therefore been implemented within the meaning of the Act”. 
[4]	Section 166 of the Accreditation Act provides that a governing body of a school that is entitled to be given an Information Notice about a decision may apply to the Tribunal for review of that decision. The decision made under s 70(3) to amend or remove a school’s accreditation is one in respect of which an Information Notice must be given to the school’s governing body. It follows that the decision to amend Jubilee’s accreditation by removing or amending the relevant attribute of accreditation is reviewable in the Tribunal.
The nature of the review 
[5]	The Tribunal has its own regime governing reviews brought within its review jurisdiction. Section 20 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) provides that the review is to be by way of a “fresh hearing on the merits”. The character of the review undertaken in the context of the Accreditation  Act will depend on an examination of the relevant provisions in that Act. 
[6]	The Tribunal has all the functions of the original decision maker for the decision under review, here of the Board. The purpose of the review is to produce the correct and preferable decision. The Tribunal may confirm the Board’s decision or set it aside and either substitute its own decision or return it for reconsideration by the Board with any directions it considers appropriate. 
[7]	Generally, a review is a new determination of the matter applying the law at the time of the rehearing and according to the evidence offered at the time of the rehearing. This was described by the High Court in Shi v Migration Agents Registration Authority as a general approach to a rehearing de novo which derives from the statutory function of substituting one decision for another. However, the High Court recognised there will be exceptions to the general approach when the particular nature of the decision under review requires a departure from that approach. As Kiefel J, with whom Crennan J agreed observed:
Where the decision to be made contains no temporal element, evidence of matters occurring after the original decision may be taken into account by the Tribunal in the process of informing itself. Cases which state that the Tribunal is not limited to the evidence before the original decision-maker, or available to that person, are to be understood in this light. It is otherwise where the review to be conducted by the Tribunal is limited to deciding the question by reference to a particular point in time.
[8]	The precise form of review will therefore depend upon the ‘character and form’ of the administrative decision under review, and the terms of the enactment under which the decision is made. I turn now to consider the nature of the decision under review and the extent of the review. This will depend upon the nature of the decision required to be made under s 70(3) in the context of the legislative scheme as a whole. 

Relevant statutory framework 
[9]	The Accreditation Act has a number of purposes: to uphold the standards of education at non-State schools; to maintain public confidence in the operation of those schools; and to foster educational choices. The objects are achieved mainly by establishing the Non-State Schools Accreditation Board (the Board); establishing an accreditation regime for the accreditation of Non-State Schools; and establishing a process for deciding eligibility for government funding. 
[10]	Section 11 provides that a regulation may prescribe criteria (the accreditation criteria) relevant to a school’s accreditation, including about the school’s educational program. 
[11]	Section 12 provides that a school may only be accredited to provide the following types of education:
(a)	Primary education;
(b)	Secondary education; 
(c)	Special education.
[12]	A school may only be accredited to use the following modes of delivery:
(a)	Classroom education;
(b)	Distance education.
[13]	A school accredited to offer a type of education must commence operations on the student-intake day for the type of education. The student-intake day for a type of education must be within 4 years after the day the application for accreditation is made. Accreditation of a school has effect until it is cancelled or surrendered under the Accreditation Act. When deciding whether to give accreditation to a school, the Board must decide in relation to each type of education proposed to be provided, whether the school’s governing body is suitable and whether the school will comply with the accreditation criteria from the school’s student-intake day for the type of education. If the Board is not satisfied about these matters, the Board must refuse to accredit the school for the type of education.
[14]	Part 6, relevantly, deals with the amendment, cancellation and surrender of accreditations. Division 2 is headed “Amendment and cancellation of accreditations”. Section 65 sets out the grounds for amending a school’s accreditation by removing or amending a relevant attribute of accreditation for the school. A “relevant attribute of accreditation” is defined to include the years of schooling providing by the school.
[15]	The grounds for amendment, relevantly, are:
(a)	for an attribute relating to a type of education provided by the school – after the student-intake day for the type of education, the school is not complying, or has not complied, with the accreditation criteria relating to the attribute;
(b)	there has been a change, without the board’s approval under part 3, in the relevant attribute of accreditation.
[16]	If the Board reasonably believes a ground exists to amend a school’s accreditation and the Board has not given, and does not propose to give, a compliance notice to rectify the matter to which the ground relates, the Board must give the school a show cause notice. The school has at least 30 days to show why the proposed action should not be taken (an “accepted representation”). The Board must consider all accepted representations before taking the proposed action. 
[17]	Section 70 sets out the decision that can be made by the Board and any relevant pre-conditions that must be satisfied before the decision is made. This is the key provision in this review.
70 AMENDMENT
(1) This section applies if, after considering the accepted representations for a show cause notice about the proposed amendment of a school’s accreditation, the board—
(a) still believes a ground exists to amend the school’s accreditation by removing or amending a relevant attribute of accreditation; and
(b) believes amendment of the school’s accreditation by removing or amending the relevant attribute of accreditation is warranted.
(2) This section also applies if there are no accepted representations for the show cause notice.
(3) The board may decide to amend the school’s accreditation by removing or amending the relevant attribute of accreditation.
(4) The board must, as soon as practicable, give an information notice about the decision to the school’s governing body.
(5) The decision does not take effect until—
(a) the last day to apply for a review of the decision; or
(b) if an application is made for a review of the decision—the day the application is decided or otherwise disposed of.
[18]	It is apparent from s 70 that judgment is involved in deciding whether to amend the relevant attribute: the Board, to amend the accreditation, must not only believe that a ground to amend exists, but also that the amendment is “warranted”. Further, once the criteria for amending accreditation is believed to exist, the power to amend accreditation is subject to the discretion of the Board, and in its place, the Tribunal. 
[19]	Section 11 provides that a regulation may prescribe criteria relevant to a school’s accreditation about certain matters, including about the school’s educational program. The relevant Regulation commenced on 1 January 2018. Regulation 4 provides that this Part (Part 2) prescribes accreditation for section 11 of the Act.
[20]	Regulation 9 provides:
9 EDUCATIONAL PROGRAM
(1) A school must have a written educational program that—
(a) has regard to the ages, abilities, aptitudes and development of the school’s students; and
(b) promotes continuity in the learning experiences of the students; and
(c) provides a breadth, depth and balance of learning appropriate to students’ phases of development and across an appropriate range of learning areas; and
(d) is responsive to the needs of the school’s students; and
(e) is consistent with the Melbourne Declaration on Educational Goals for Young Australians.
Note—
The declaration can be viewed on the COAG Education Council’s website.
(2) If a school is accredited to provide education to students from preparatory year to year 10 and offers a learning area included in the Australian curriculum, the school must implement 1 or both of the following for the learning area—
(a) the Australian curriculum;
(b) a curriculum recognised by ACARA.
(3) If a school offers a subject in addition to a learning area included in a curriculum mentioned in subsection (2) , and a syllabus for the subject has been developed, purchased or revised by the Queensland Curriculum Assessment Authority under the Education (Queensland Curriculum and Assessment Authority) Act 2014 , section 10 , the school must implement the syllabus for the subject.
(4) A school accredited to provide senior secondary education must implement—
(a) if the school is offering a subject for which there is a syllabus developed, purchased or revised by the Queensland Curriculum and Assessment Authority under the Education (Queensland Curriculum and Assessment Authority) Act 2014 , section 9 —the syllabus; or
(b) a program or syllabus endorsed by the Queensland Curriculum and Assessment Authority as appropriate for senior secondary education; or
(c) a program authorised by the International Baccalaureate Organisation.
(5) A school’s educational program may also include—
(a) a vocational education and training course at level 1 or above under the Australian Qualifications Framework; and
(b) recognised studies under the Education (Queensland Curriculum and Assessment Authority) Regulation 2014 , part 4 , division 5 ; and
(c) other courses, programs, studies or subjects decided by the school’s governing body.
(6) In this section—
"ACARA" see the Education (Queensland Curriculum and Assessment Authority) Act 2014, schedule 1 .
"Australian curriculum" see the Education (Queensland Curriculum and Assessment Authority) Act 2014, schedule 1 .
"Australian Qualifications Framework" see the Higher Education Support Act 2003 (Cwlth), schedule 1
[21]	A school accredited to provide senior secondary education must therefore satisfy one of either s 9(4)(a), (b) or (c). A school’s education program may also include other courses or programs decided by the school’s governing body. 
[22]	It is not clear when a school will be considered to have “implemented” the options in reg 9(4). To “implement” means to “start using a plan or system”. In this context, in my view, implementation would require the effective integration and use in practice on an ongoing basis of the prescribed educational program within the school.
[23]	The Tribunal on review may:
(a)	confirm or amend the decision; 
(b)	set aside the decision and substitute its own decision; or
(c)	set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the Tribunal considers appropriate.
[24]	The purpose of the review by the Tribunal is to make the “correct and preferable decision” by way of a “fresh hearing on the merits”. In view of s 70 of the Accreditation Act, and having considered the nature of the decision under review, in my view, this decision is to be made according to the law and evidence at the time of the hearing. 
The background 
[25]	Jubilee was established in 1984 as Tableland Christian College catering for years 1 to 7 students. In 1992 this was extended to year 10 and in 1992 to year 12. In 1992 the distance education attribute was also added to the school. Jubilee was established using a variety of curriculum resources of which the Accelerated Christian Education (ACE) was the major component.
[26]	On 13 June 2018, the Board notified Jubilee of the withdrawal of the show cause notice of 4 December 2015 that had been issued under the Education (Accreditation of Non-State Schools) Act 2001 (Qld) (the former Act).
[27]	On 13 June 2018 Jubilee was issued with a “show cause notice” under the current Accreditation Act on the basis the Board reasonably believed a ground existed to amend the school’s accreditation by removing or amending a relevant attribute of accreditation. The Board proposed to amend Jubilee’s accreditation by removing years 11 and 12 for classroom and distance education. The ground relied upon by the Board was that in s 66(1)(d), namely that the school is not complying, or has not complied, with the accreditation criteria relating to the type of education. The accreditation criteria relied upon was that in reg 9(1)(c) and reg 9(4). In essence, the school was offering subjects for which there was a QCAA syllabus available but instead was teaching those subjects according to its own ACE syllabus. Those subjects were: English, Mathematics, History, Biology, Geography, Chemistry, Health and Nutrition, and Art.  In respect of Jubilee’s year 11 program, the Board had no evidence it met quality assurance standards for QCAA, and, presumably then, whether it complied with reg 9(1)(c).  
[28]	The position of Jubilee is evident from its response. The position remained essentially unchanged at the hearing. In effect, Jubilee considered that it complied with the former Act and Regulation which only required a program which enabled students to achieve “standards of learning comparable to Queensland standards of learning” and that it was working towards implementation of the new requirements as imposed by the Accreditation Act and Regulation and expected to meet those requirements for year 11 students at the beginning of 2019. The requirements would be met for those students in year 12 in 2020.
Consideration 
[29]	In my view, the task for the Tribunal upon review is relatively straightforward. The issue is whether, at the time of the hearing, the school’s accreditation should be amended. This in turn rests, in part, upon whether the school has complied with reg 9 which requires that Jubilee either implements:
(i)	the QCAA syllabus for subjects where there is a QCAA syllabus; or
(ii)	a program or syllabus otherwise endorsed by QCAA as appropriate for senior secondary education; or
(iii)	a program authorised by the International Baccalaureate Organisation (IBO).
[30]	The QCAA has not endorsed any alternative program or syllabus put forward by Jubilee. Even if it had, and that program had not been endorsed by QCAA, that decision by the QCAA would not be reviewable in the Tribunal. Jubilee has not implemented a program authorised by the IBO. The issue of whether Jubilee complies with reg 9 is limited to whether Jubilee implements the QCAA syllabus for those subjects for which such a syllabus has been “developed, purchased or revised”. As “senior secondary education” means secondary education offered in years 11 and 12 of schooling, reg 9 requires that, as at the date of the decision, Jubilee must, in respect of those subjects offered in both years 11 and 12 for which there is a QCAA syllabus, have implemented that syllabus.
[31]	“Implement”, as noted above, means to “start using a plan or system”. In this context, in my view, implement would mean to start using and to continue to use the QCAA syllabus.
[32]	The evidence is that, although Jubilee offered QCAA syllabus for its year 11 subjects, it did not for its year 12 subjects. At the time of the on-site assessment conducted by the Board on 21 to 23 March 2018, 87 students were enrolled at Jubilee in years 11 and 12, and of these students, 55 students were completing six Accelerated Christian Education (ACE) subjects as their senior secondary educational program. The implementation of the ACE program, which Jubilee refers to as its Distance Education Unit 1 program, is offered as an alternative program to the QCAA requirements. The subjects include English, Mathematics, History, Biology, Geography, Chemistry, Health and Nutrition, and Art. These are all subjects in respect of which QCAA syllabuses are available. The QCAA syllabus are not however used, and neither have the ACE subjects or an ACE program been endorsed by the QCAA as appropriate for secondary education. 
[33]	It follows, in my view,  that Jubilee was not compliant with reg 9(4) with respect to, at least its year 12 program, at the time of the original decision and, as at the date of this review, is still non-compliant, almost two years after the Accreditation Act commenced.
[34]	I would add that there is limited substance in the submission on behalf of Jubilee that it needed more time to comply, or that to require compliance by the commencement of 2018 or even by 2019 was prejudicial to current senior students, particularly those entering year 12 in 2019. This is because the Accreditation Regulation 2017 Explanatory Note makes clear that the Regulation does not impose any new education accreditation but merely changes the authority responsible for making certain accreditation decisions. 
[35]	In particular, the former Regulation required that a school provide an education program that enables students to achieve Queensland standards of learning or learning comparable to Queensland standards of learning. Under the former Regulation, the Board made those decisions, under the current Regulation that decision is made, for education programs for senior secondary school, by the QCAA and for prep to year 10 by the Australian Curriculum, Assessment and Reporting Authority (ACARA).
[36]	The object of the current Regulation is explained as follows:
The Regulation provides more certainty about the educational program a school must implement, while still maintaining flexibility for the non-state sector to be innovative in its curriculum delivery. Responsibility for determining whether an education program is appropriate will now sit with ACARA for Prep to Year 10 and the QCAA for Years 11 and 12. This will assist to ensure a quality standard of education in Queensland’s non-state schools and to maintain public confidence in the sector. 
Section 9 of the Regulation provides that schools must implement one or more of the following: 
• for Prep to Year 10: 
o the Australian curriculum; 
o a curriculum recognised by ACARA; or 
o if the school offers any other subjects, and a syllabus for that subject has been developed or revised by the QCAA - the QCAA syllabus; and 
• for senior secondary education: 
o if a school offers a subject, and a syllabus for that subject has been developed, or revised by the QCAA, the school must implement the QCAA syllabus; 
o a program or syllabus endorsed by the QCAA as appropriate for senior school education; or 
o a program authorised by the International Baccalaureate Organisation. 
Schools can offer other subjects in addition to the educational programs outlined above, including vocational education courses, courses recognised by the QCAA as contributing to the Queensland Certificate of Education. 
In addition, section 9(1) requires that the programs must have a written educational program that: 
• has regard to ages, abilities, aptitudes, and development of students; 
• promotes continuity of learning experiences; 
• provides a breadth, depth and balance of learning appropriate to students’ phases of development and across an appropriate range of learning areas, consistent with the Melbourne Declaration on Educational Goals for Young Australians; and 
• is responsive to the needs of students. 
These requirements ensure that schools implement appropriate and effective educational programs across a range of learning areas (such as English, mathematics, science, humanities and social sciences, the arts, languages, health and physical education, information and communication technology, and design and technology). The Board will consider whether a school has implemented their programs in sufficient depth, when assessing compliance with the criteria. 
Consistent with the 2001 Regulation, the Regulation requires schools to have a written statement of philosophy and aims that is the basis and guide for the school’s educational program and organisational practices. 
Also consistent with the 2001 Regulation, the Regulation requires schools delivering distance education to have a written standard of dealing with the school’s distance education service. In addition, non-state schools will be required to ensure regular engagement between students Education (Accreditation of Non-State Schools) Regulation 2017 Page 5 and teachers. This engagement can be via email or other electronic forms of communication, and must include feedback and guidance as opposed to just providing students with distance education materials. 
Consistent with the 2001 Regulation, the Regulation requires special assistance schools to promote continuous engagement of students in education. It also requires they have a written standard of service dealing with matters such as the regular tracking and assessment of students’ work, monitoring of student attendance, participation and achievements and strategies for engaging students in education. 
As with the 2001 Regulation, the Regulation requires that approvals for flexible arrangements for students to participate outside the school’s usual educational program must comply with the requirements under section 182 of the Education (General Provisions) Act 2006. 
[37]	I also note that the Board has been monitoring Jubilee’s compliance with accreditation criteria since 2009. A show cause notice was issued on 4 December 2015 following an investigation and assessment which found Jubilee was not ensuring it implemented a compliant educational program. There have been two further assessments since then: the Assessment Report of 7 August 2016 and the Assessment Report of 2 April 2018 which followed an investigation on 21 to 23 March 2018. While the relevant report for the purposes of this review is that of 2 April 2018, the prolonged period in respect of which the curriculum offered by Jubilee has been in doubt coupled with the evident failure of Jubilee to satisfy the Board that it is compliant, weighs against the exercise of the discretion in s 70(3) in favour of Jubilee.
[38]	Factors in support of exercising the discretion in favour of Jubilee are its submissions to the effect that students in year 11 in 2019 will be undertaking QCAA courses in year 12 in 2020. These submissions were supported by the evidence of John McGuire, Assistant Director, Strategic Engagement Branch of the QCAA. I also note, as stated by Mr McGuire that “it is important to be aware that Queensland’s System of senior assessment and tertiary entrance is in a period of transition”. Further, it was submitted that certain adverse consequences would follow if accreditation for years 11 and 12 was removed. In particular, it could be inferred that:
(a)	The need for campus students to relocate to other schools.
(b)	Distance education students having to be reassigned.
(c)	Loss of staff employed at the senior phase schooling.
(d)	The fact that students completing year 10 at Jubilee cannot progress to years 11 and 12 despite their length of involvement with the Jubilee education program, in its Christian context.
[39]	Jubilee was not implementing a program, syllabus or courses prescribed for implementation at a Non-State school in year 12 by reg 9 of the current Regulation at the commencement of the Regulation on 1 January 2018; at the time of the Information Notice issued by the Board on 2 November 2018; and, by its own admission, at the time of the hearing. However, I accept that Jubilee has implemented QCAA syllabus, where relevant, for its year 11 students in 2019 and that it is intended that those students will continue to study the QCAA syllabus for those subjects in year 12 in 2020. 
[40]	The students in year 12 in 2019 were not required to complete the QCAA syllabus for their year 12 subjects. This was a conscious decision by Jubilee to permit those students to complete the studies for which they had enrolled rather than to have them enrol at short notice and effectively half way through the QCAA program. In particular, it was submitted that as QCAA subjects are taught over four semesters (that is over two years), students in year 12 in 2019 would have been required to extend their schooling by a further year to complete the QCAA program or subjects for which there was a QCAA syllabus. Jubilee took the view that it would not be reasonable to impose this requirement on those students. Although I disagree with that decision I understand the motivation behind that approach. I am also conscious that removing accreditation for years 11 and 12 may cause serious disruption to the school, particularly to its current year 11 students. I also accept that Jubilee, on the evidence of Mr Risser and Mr Baker, is expected to be compliant by 2020. 
[41]	It was, in my opinion, reasonable for the Board to have amended Jubilee’s accreditation at the time when that decision was made. In particular due to Jubilee’s issues with respect to compliance in the past and in light of the objects of the Accreditation Act, namely, to uphold standards of education and maintain public confidence in non-State schools. I am mindful, however, that the effect of this decision will be to confirm the proper interpretation of the Regulation and that Queensland’s senior education system is in a period of transition. There is also further material before me than there was before the Board. That material, however, is not sufficient for me to assess with confidence whether Jubilee has or will have implemented the QCAA syllabus with respect to its year 12 students in 2020. That is better assessed by the Board, in light of all information that, relevantly, it requires. I am mindful also of the considerable inconvenience which may be caused to students and families if the accreditation is amended, particularly for those students commencing year 12 in 2020. 
[42]	The preferable outcome, ultimately, is a school compliant with the regulatory requirements. In all the circumstances, I am not inclined to amend the accreditation. Now that there is certainty with respect to the requirements of the Regulation, Jubilee should be afforded a further opportunity to demonstrate to the Board that it is compliant with respect to years 11 and 12 in the 2020 school year. 
[43]	The Board also submits that there is non-compliance with reg 9(1)(c). As it appears the QCAA quality assurance processes to ensure implementation of syllabuses commences in 2020, this aspect is also, in my view, better assessed by the Board upon its reconsideration. 
[44]	In all the circumstances, I will return the decision to the Board for reconsideration which will no doubt take place in the context of the proper meaning of the Regulation and in light of all information then available and required.