Culture of Continuous Compliance: Principal Continuing to Run Alternative Schools Despite NESA Report

26 July 2018


In a recent case decided before the NSW Civil and Administrative Tribunal, Eagle Arts & Vocational College was given latitude to pursue a case for discrimination against NESA on the grounds of race and disability. However, there has been a long and complicated history prior to this decision.

Eagle Arts & Vocational College (Eagle Arts) is a private school with no fees and is designed for students as an alternative education option. It has been established since 2016 at three campuses in Bligh Park, Broken Hill and Kincumber. It is an alternative school, catering for students 13-18 years of age, who have been asked to leave their previous school or who refuse to attend mainstream high schools. The school's principal, Gab McIntosh, describes Eagle Arts as a 'low-stress school'. There are no exams or assignments, and the only time students get homework is when they ask for it. There is no uniform required, and year groupings are irrelevant. To pass a year at Eagle Arts, students simply need a minimum 100 days of attendance."

NESA Registration Process

Non-government schools must be registered before they can operate and provide education to children. NESA is responsible for the implementation of the statutory registration scheme under the Education Act 1990 (NSW) (the Act) in Division 2, Part 7. The mandatory requirements for registration are set out in section 47 of the Act. The Registered and Accredited Individual Non-Government Schools (NSW) Manual provides details about the legislative basis for registration and accreditation, the requirements and associated evidence of compliance, and the application and assessment process.

Through the registration process, registration authorities are able to uphold minimum standards for curriculum and operational activities for schools in their jurisdiction. Registration is not permanent and is generally renewed every five years or after a school experiences a structural change, such as adding a campus or a year level. Non-government schools in all jurisdictions must comply with certain legal and regulatory requirements, including those concerning incorporation, financial viability, school curriculum, staff qualifications and student safety/welfare. Usually the school registration authority will be an independent body. Schools are usually audited randomly each school year with NESA detailing on its website that each year the sample includes 18 government schools, 4 individual non-government schools and 4 systemic non-government schools.

Registration compliance requires ‘big picture’ compliance with many different obligations – registration authorities are essentially making an assessment of whether a school is doing everything it needs to, practically and legally, in order to be a school.

Issuing of a Non-Compliance Report

Issues in relation to the registration of non-government schools under the Act fall into three broad categories:

  • Areas of improvement: the school is substantively compliant with the requirements under the Act but has not demonstrated that it meets all the evidentiary criteria under one or more registration requirements.
  • Concerns about compliance: the school has not satisfied NESA that it complies with one or more registration requirements.
  • Non-compliance: NESA is satisfied that the school is in breach of one or more registration requirements under the Act.

In the case of Eagle Arts, NESA issued a non-compliance report in November 2017 on the basis of concerns about non-compliance in areas including staff, curriculum, buildings, child protection and financial reporting. After scheduled monitoring visits, NESA's report said it had serious concerns about the fact there were no students present at any of its inspections, and that evidence provided to support the staff’s verbal claims that students were at the local swimming pool or on an excursion was not satisfactory.

“The inspector has concerns that the school may not be complying with the registration requirement for providing a safe and supportive environment with regard to student welfare...The school also failed to provide proof that its staff had been trained in relation to child protection," NESA's report said.

The Minister is required to obtain advice from NESA in relation to registration decisions involving individual non-government schools. The Minister may only vary (reduce or extend) a school's period of registration or cancel a school's registration upon a NESA recommendation to that effect. The Minister may only refuse a school's application for renewal of registration after having considered, but not necessarily having followed, the NESA recommendation.

If the school is seeking renewal of registration and is found to be non-compliant then NESA will recommend refusal of registration. If the school is found to be non-compliant at any other time, NESA will recommend the cancellation of the school's registration. These decisions are subject to internal review and external appeal. The Minister's subsequent decisions are not subject to external appeal.

Case Outcome

As a result of the NESA recommendations to the Minister, Eagle Arts was notified that its registration would be cancelled. This is far from an extraordinary occurrence as, according to NESA, since 2005, 96 non-government schools in NSW have closed, making closure for non-compliance not that unusual.

The principal of Eagle Arts has said that NESA did not give staff enough time to gather the required information for the inspections, and gave the school just a week to respond to the report. NESA’s inspections of Eagle Arts campuses occurred several times throughout 2017, and the report was sent to the school in mid-November. NESA also issued a statement saying the requirements for registration as a non-government school were well publicised, but that its committee would consider Eagle Arts’ response to the report, and would be willing to work with the school to ensure continuing compliance.

Eagle Arts responded by bringing the case to the NSW Civil and Administrative Tribunal claiming discrimination on the grounds of race and disability. The case was decided this week (July 2018). Part of the complaint was dismissed by the Registrar, however, part of the Registrar's decision was that NESA could have a case to answer if Eagle Arts had properly prepared its case. Notwithstanding these circumstances, the principal continues to run the three Eagle Arts' campuses.

Lessons for Schools

The case of Eagle Arts highlights that all NSW schools are potentially subject to random inspections under NESA's mandate. It is reasonable to expect that all registration authorities are likely to take a more active role in confirming compliance, through more regular and rigorous inspections and increased evidentiary expectations.

Schools should anticipate this by proactively implementing internal Registration Compliance systems which:

  • are responsive to regulatory change
  • facilitate continuous compliance by all school staff, and
  • meet the expectations and needs of their state/territory registration authority and its inspectors.

Lauren Osbich

Lauren is a Content Development and Legal Research Consultant at CompliSpace. She has over ten years of experience in legal research and legal publishing, working nationally across Australia. She studied at Macquarie University completing a Bachelor of Laws with an Honours in English, followed by being admitted as a solicitor of the NSW Supreme Court. Lauren is also passionate about giving back to the community through the not for profit sector as well as donating time to mentor and coach young lawyers in their professional development and finding time to also be a member of a not for profit Board.