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17 November 2023 - A "Trifecta of Non-Compliance" and Closure of BCC's Carpark
Sadly, Brindabella's expansion and creation of a carpark on a portion of the neighbouring Lyneham Oval, in breach of a sublease granted in 2009, has been the cause of much controversy and friction with local residents. The Lyneham Community Association (LCA) has recently brought the matter of safety concerns and BCEL's planning breaches, as well as the lack of enforcement by the Planning Authority and crown leaseholder TCCS, to the ACT Civil and Administrative Tribunal (ACAT).
After considering submissions and evidence from the LCA, ACT Planning, TCCS and the College, ACAT made a final decision and orders on Tuesday 14 November 2023 with the need to restore public confidence in the planning system and the safety of the community as primary public interest considerations.
ACAT's decision to issue a Controlled Activity Order requires BCC to:
- cease using the carpark, and drive through drop off, from the last day of Term 4, 2023;
- block the access to the carpark from the last day of Term 4, 2023;
- demolish the verge crossing and reinstate the kerb and footpath by start of Term 1 2024 and,
- demolish the entire carpark and reinstate the land within twelve months from the date of Final Orders unless BCC is able to obtain development approval to use the land as a carpark within twelve months of the Final Orders (which will require an approved variation to the Territory Plan, which in turn will require consultation with, and agreement from, the Lyneham community)
The ACAT Senior Member stated that on evidence and submissions before it,
"The breach of the planning laws has been with knowledge and deliberate
and in the teeth of widespread community opposition....
In these circumstances, the issues of where the public interest lies
is considerably more nuanced than the Authority and
the College have addressed to-date".
During proceedings, all parties agreed and accepted multiple planning breaches by the College had existed ("A Trifecta of Non-Compliance") being:
(1) BCC has been using the neighbouring land (which is a portion of the Lyneham oval), solely as a
carpark since 2009 in breach of the purpose clause of its sub lease with ACT Planning (TCCS).
(2) This land is zoned PRZ1 which does not allow for carpark use so a variation to the Territory Plan
and sub lease would be needed prior to any DA for a carpark being lodged.
(3) Sealing the carpark was a type of development which required a DA which has never been provided.
The ACAT Senior Member advised reasons for the decision and orders will be made public in due course which we will be able to make publicly available in the coming weeks we expect.
You can read more here:
Sadly, the issue of the carpark and Brindabella's non-compliance with planning laws has played out for more than a decade. The carpark has been the subject of multiple complaints from local residents and the LCA during this time. An attempt by BCEL in 2015 to buy the land and develop a sports pavillion and car parking was unsuccessful largely due to a lack of community support.
You can read more here:
Canberra Times 23/4/18 "Lyneham residents call for new approach to managing oval development"
Canberra City News 16/9/15 "Community anger kills off Lyneham Oval redevelopment"
Riot Act 12/5/19 "Lyneham Community still at odds with Brindabella Christian College"
Riot Act 12/11/14 "Lyneham Oval Land Grab: Private Sport on Public Land"
And an LCA Community Petition to the ACT Legislative Assembly and tabled 1/6/2022 clearly expressing their concerns around safety can be read here.
The recent matter before ACAT (AT/0055/23) was heard across two days with submissions and evidence from BCC, Lyneham Community Association (LCA), the ACT Government Planning Authority (ACTPLA), a TCCS Town Planner, a TCCS Traffic Management engineer, a Lyneham resident, the current BCC Business Manager John Clark, and former BCC Groundsman Craig O'Meara. Brindabella did not provide a decision-maker (eg Director) to participate though it was encouraged by ACAT to do so on at least two occasions.
The proceedings included extensive discussions and evidence around safety issues and implications for the BCC community and local residents, as well as Lyneham Primary students, both in the case of keeping the carpark operational and the case of closing the carpark.
It was made clear, from evidence submitted to the Tribunal, that Brindabella has multiple options before it to source alternate parking arrangements including initiating discussions with the Uniting Church next door, utilising the Lyneham playing & hockey fields carpark, utilising shuttle services, the tram and encouraging BCC families and staff to make better use of local public transport networks. The onus of responsibility was clearly set on BCC to implement a safe and legal transport plan for its staff and parents and ensure the risks to safety and disruption of local residents are minimised. They were encouraged to engage with TCCS to find workable solutions.
The ELC drop off and pick up was noted as more difficult with the ACAT SM stating this dilemma was of Brindabella's own making having built classrooms on its existing carpark and expanding its operations in recent years without thought for parking provisions, transferring the entire burden of parking provision upon the local community which was inconsistent with its planning obligations.
The verge crossing to the carpark (entrance off Brigalow St) was also noted as unapproved and dangerous, particularly to pedestrians, hence the order to demolish it and return it to its original state.
Safety concerns were the primary factor of consideration during proceedings noting the schools expansion and increase in student population beyond limits set in 2016 placing extra demand on Brigalow St and the suburb with a request from LCA for enrolments to be rationalised in line with planning obligations.
The need to restore community confidence in the regulation and enforcement of planning laws, was also noted by the Senior Member as another primary consideration influencing ACAT's decision, noting the ACT Planning Authority, over the last decade or so, had failed to properly enforce compliance with Planning laws and regulations which has also contributed to the current situation.
Given LCA pursued this matter with ACAT resulting in the issuing of a Controlled Activity Order, rather than being issued by the ACT Planning Authority, we understand BCC's review rights are far more limited.
We understand this decision and the orders place BCC staff, parents and students in very difficult circumstances next year (2024) however, ACAT noted these are purely a consequence of the Board's failures to consider and abide by Planning Laws and regulations and a failure to give proper and due consideration to the community in which they operate. We encourage parents to seek clarity and raise any concerns directly with BCC. If you require further support feel free to contact us.
This is not conduct consistent with the Christian values and virtues Brindabella's founding members sought to pursue and uphold. It is a poor example of leadership and Christian witness and a failure to love your neighbour.
The cumulative adverse findings, under the current Board Chair, give cause for serious concerns and need for intervention and change. Please be prayerful of the College and its community and for a change in governance and reform of the BCEL Constitution to protect this Christian school option now and into the future.
6 October 2023 - ACCC Issues Alert Impacting School Enrolment Agreements
The Australian Competition and Consumer Commission (ACCC) is an independent Commonwealth statutory authority. Its role is to administer and enforce the Competition and Consumer Act 2010 and other legislation, including Australian Consumer Law (ACL), promoting competition and fair trading.
Last year, a landmark case in the ACT Civil and Administrative Tribunal (ACAT) determined school enrolment agreements are 'standard form contracts' for the supply of services to parents for the use of their children under Section 23(3) of Australian Consumer Law (ACL). Parents agree to pay fees for that service and as such, parents are bonafide service recipients with clear rights and protections under ACL.
The ACT case identified the requirement for a parent to provide a full terms notice, to notify intent to withdraw a child at the end of a school year, and the ability for a school to unilaterally change fees, without the ability for parents to withdraw their children without penalty, were both unfair terms and beyond what was reasonably necessary for a school to protect its interests, placing parents and families at a disadvantage and risk of detriment.
The case attracted national media attention and resulted in law firms and regulatory bodies across the country specifically advising non-government schools to review and amend their enrolment agreements to ensure terms complied with ACL and fair trading practices.
ACCC Alert Issued 11 Sept 2023
Recent law reform of the ACL has strengthened enforcement powers of the ACCC to ensure fair trading practices. ACCC recently issued an alert urging ALL businesses, which includes non-government schools, to remove or amend unfair contract terms before new hefty penalties take effect, stating:
"From 9 November, changes to the Australian Consumer Law will prohibit businesses from
proposing, using, or relying on unfair contract terms in standard form contracts with consumers
and small businesses. The changes will allow Courts to impose substantial penalties on
businesses and individuals who include unfair terms in their standard form contracts.
Currently, a Court can only declare specific terms of a contract unfair and therefore void.
“The changes to the unfair contract terms laws should motivate businesses to take steps
to ensure their standard form contracts are fair, including by removing or amending
concerning terms,” ACCC Deputy Chair Mick Keogh said.
“There was previously little motivation for businesses to comply with the law, despite the
ACCC’s compliance and enforcement actions. We strongly urge businesses to review their
contracts now to ensure they comply.”"
Read ACCC's full alert here.
The ACCC alert would appear to indicate Brindabella Christian College is wilfully continuing to engage in unfair trading and consequently placing parents at a disadvantage and potentially subjecting itself to hefty penalties.
Brindabella Christian College (BCC) recently issued a new Fee Schedule for 2024 and circulated draft enrolment documents for parent feedback which both include previously voided and unfair terms.
Retaining these previously voided terms is not the conduct of a fit and proper Board nor a governance acting in the interests of parents and children. Parents know your rights and take action!
The Landmark Case Placing Schools Under ACL:
On 5 May 2022, ACAT ruled the notice to withdraw term (Clause 25(c) in Brindabella Christian College's Enrolment Agreement to be an unfair contract term under Section 23 of the Australian Consumer Law (ACL). (BCEL vs Respondent XD 561 of 2021 (2022) ACAT 37)
Clause 25 (c) stated:
"One full college terms notice in writing to the Principal is required for the intended
withdrawal of the child, otherwise a full terms fees will be charged.
The written notice must be received by the College by the first day of the term.
Any Notice received after the first day of term will render parents/carers liable for
that term and the subsequent term in lieu of notice".
The ACAT Senior Member found this notice term "operates in the context of a rolling contract which permits the school to unilaterally vary the terms of the contract, including fees, without giving the parents a right to terminate without penalty. In my view such a model is neither reasonable nor necessary". (Item 66)
Key Findings Against the School
(1) 2022 ACAT Case:
In BCEL vs Respondent XD561 (2022) 37, ACAT determined, amongst other issues, "the restriction of the parents right to withdraw without penalty if the school varies the terms of the contract puts them at a significant disadvantage and therefore must be explicitly stated. I do not think that the effect of the notice term, in the context of the contract is sufficiently transparent". (Item 53)
The Senior Member continued "The notice term operates in the context of a rolling contract which permits the school to unilaterally vary the terms of the contract, including fees, without giving the parents a right to terminate without penalty. In my view such a model is neither reasonable nor necessary". (Item 66)
Finally, the Senior Member found "that the school failed to establish that the notice term (Clause 25(c), in the context of the contract, was either reasonable or necessary to protect its legitimate interests" (Item 70).
Clause 25(c) was ruled unfair, subsequently voided, no longer enforceable, and the case initiated by the school against a parent to recover a full terms fees ($3,785) plus costs and interest in lieu of notice, dismissed.
(2) 2021 Dept of Fair Trading Investigation:
In response to parent complaints, an investigation by Access CBR - Dept of Fair Trading identified three additional terms in BCC's enrolment agreement, requiring parents to agree to "Advance the College's Interests", as likely unfair terms. (Under ACL, only a court can rule terms are unfair).
Fair Trading recommended the school remove or amend these terms which limited free speech and created a power imbalance between parties. The Association observes however, these terms have been retained in new draft enrolment documents (Clause 13-16) recently circulated to parents last month.
Read more about the risks identified to BCC parents and children by multiple regulators and agencies here.
Parents its time to have your say! The Parent Survey link emailed to you by BCC closes 6 October 2023. You can also exercise your contractual rights and write to the school expressing the retention of unfair terms is unacceptable and ask these terms be removed or amended.
Current BCC Enrolment Documents
Previously voided terms evidenced in the current withdrawal term of the 2024 Fee Schedule and Clause 30:
Parents - If you are not satisfied with the schools response to your complaint or request to remove or amend the terms, we recommend you write to the ACT Education Directorate via email: email@example.com and lodge a complaint with Dept of Fair Trading through Access CBR.
You may find more information about your rights and protections under Australian Consumer Law here.
ACL indicates terms are considered unfair under Section 24(1) if the terms would:
(a) cause a significant imbalance in the parties rights and obligations arising under the contract, and
(b) it is not reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term, and
(c) it would cause detriment (whether financial or otherwise) to a party if it were to be applied or relied on.
National Implications for all Parents
The landmark ruling made national front page news and triggered law firms across the country to advise schools to review their enrolment agreements and, in particular, ensure terms regarding end of year withdrawal notice did not place parents at a disadvantage or cause detriment, as required under ACL.
You can also Get Involved to help grow the Association membership and collectively advocate for change not only in these enrolment documents and policy, but lasting change for BCC through governance reform.
26 September 2023 - School Fee Increase up to 36% for 2024
Brindabella Christian College (BCC) sent out an out of school hours email to parents last day of Term 3 2023 notifying an increase in school fees for 2024. The proposed increases, ranging from 20-36% depending on year levels are substantial and with notice of any intent to withdraw required by first day of Term 4 (just two weeks away), is causing significant distress and pressure on parents during the holiday period.
BCC has attributed this dramatic increase to $30Million in infrastructure improvements and expansion of learning programs as well as a transition in reduced commonwealth funding. With media reports indicating Stop Work Orders are in place on incomplete demountable buildings however, nine new classrooms have remained unoccupied all year despite repeated assurances they'll be open soon, and the school using unapproved buildings as permanent classrooms, is the fee increase justified?
Whilst schools may increase fees from time to time and the degree of this increase is a matter you are invited to discuss with the Business Manager if it causes you hardship, the terms imposed for notice are unfair and unreasonable and do not allow time for proper consideration or research of other schooling options.
ACL, ACCC & ACAT say Fee Increase Terms Imposed by BCC are Unfair, Unreasonable and Void!
Firstly, BCC's 2024 Fee Schedule is an enforceable contract document.
The circumstances around the notification of the fee increase, and the terms imposed, gives little assurance that any regard has been given by the Brindabella Christian Education Limited (BCEL) Directors to the impact of such notice on families. A recent ACAT decision against BCEL determined parents in non-government schools are bonafide service recipients with clear rights to be treated equally and fairly under Australian Consumer Law (ACL).
Know you rights! Read more below.
BCC fee increase terms contradict a recent ACAT ruling against the school
Terms in the 2024 Fee Schedule requiring a full terms notice for an end of school year withdrawal contradict a previous ruling by the ACT Civil and Administrative Tribunal in May 2022 against BCEL. The Tribunal determined that such a contract term at the end of a school year placed parents at a disadvantage and was not fair or reasonable. Consequently, the Tribunal voided the term in BCEL's enrolment agreement as unfair under Australian Consumer Law.
The case that BCEL had brought against a parent for failing to pay a full terms fees when withdrawing their children at the end of the year was subsequently dismissed. The SMH covered the story of the BCC father defending himself as a front page article on 28 May 2022 (read here) recognising the national significance of such a landmark ruling with implications for parents across the country in non-government schools.
The Tribunal's ruling recognised parents as bonafide service recipients with clear rights under Australian Consumer Law (ACL). In the BCEL matter, the Tribunal affirmed that parents interests are equal to the schools interests, and they must be treated fairly with sufficient time to consider schooling options for the following year, time to consider and assess fee increases and their impact, and time to find alternative places for one or all of their children if they choose to change schools.
The Tribunal also determined the start of Term 4 notice term in BCEL's enrolment agreement was significantly beyond what was reasonable and necessary for BCEL to protect its interests and make arrangements for the following school year.
It is remarkable that BCEL has not only failed to remove these terms voided from their enrolment agreement by ACAT in 2022, but is now imposing only a 14 day notice period upon parents, before penalty's apply, from the Fee Schedule Notice issued on the last day of Term 3. This would indicate either gross and negligent error or disregard for the ruling of the Tribunal and parents rights and interests. In any case, it is not the conduct of and fit and proper Board of Directors!
BCC fee increase terms are inconsistent with draft enrolment documents recently released
The Association notes terms in the 2024 Fee Schedule are inconsistent with terms set out in draft enrolment documents circulated amongst parents for feedback just weeks ago.
Given the terms set out in the new 2024 Fee Schedule, and the continued use of previously voided terms (by ACAT), it brings into question the reliability and trustworthiness of BCEL in considering feedback gleaned during the consultation process it initiated with parents and suspicion around what terms may be left in any new enrolment documents.
ACCC Alert: 11 September 2023
As a result of ACAT voiding this end of year terms notice in BCEL's enrolment agreement, the term is no longer enforceable by BCC. Given the ACCC is advising voided terms must be removed from enrolment agreements under recent ACL Law Reforms, why is BCEL failing You can read ACCC's recent alert here.
For more information on your rights under Australian Consumer Law (ACL) as a school parent, this ACL Guide may be of help to you. ACL What are Unfair Contract Terms
Historical adverse findings against BCC enrolment documents
Multiple regulators have made adverse findings against BCEL enrolment documents which remain largely unresolved and require amendment and review in consultation with parents and students. Read more here.
What are your options?
Option 1: Parents you are within your rights, under Australian Consumer Law (ACL) to engage directly with BCEL Business Manager, Principal or Board directly to discuss the fee increase and how it may impact you as they have outlined in the email to parents.
Option 2: You are also within your rights to require BCEL immediately adjust this end of year terms notice to allow you the whole of Term 4 to consider your options for Term 1 2024. Any change in agreement terms requires reasonable notice and fairness to parties; ie allowing parents the option to remove their children (withdraw from the contract) without detriment or disadvantage.
If you are not satisfied with the schools response to your complaint, write to ACT Education Directorate at firstname.lastname@example.org. The Education Directorate are responsible for the schools compliance with Registration Standards and Education Act 2004.
Option 3: The CCR@BCC Association has formed to advocate on behalf of, and to protect, the BCC community's interests. You can add your voice to help protect your children's continuing education at BCC by joining our membership and staying abreast of developments. Get Involved here!
If you have any concerns, please reach out via email@example.com and someone from our Committee, which includes other current parents, would be happy to help via a phone call, email or in person.
Option 4: Collective action - We are currently reviewing our options to collectively address this dramatic increase, and the unreasonable terms, with the BCEL Board directly as well as question their intentions with the draft enrolment documents. Your voice adds weight and confidence to these efforts on behalf of the school community and your children. Get Involved and stay tuned!
Option 5: You can lodge a complaint with Dept of Fair Trading via Access CBR here outlining your concerns and how you believe you are being treated unfairly.
5 May 2023 - Why is Education Minister Jason Clare Silent?
On 12 April 2023 the Federal Education Minister Jason Clare agreed to Conditions requiring Brindabella Christian Education Limited (BCEL), the governing entity of Brindabella Christian College (BCC), to report their 2021 financial statements by 1 May 2023 as well as satisfy requirements to increase the size and composition of their Board, disclose their new funding arrangements with NAB and report how they will repay a $4.8 Million PAYG debt to the ATO which accrues around $37,000 per month in interest!!
$37,000 per month in interest?
Now that would make a huge difference in the classroom!
We have sought a status update from the Department of Education, and the Minister, regarding BCC's compliance with these conditions and others which held April and 1 May deadlines (see the table below).
The Department however, has been silent except to say they are "working with BCEL to ensure they are meeting the conditions as outlined by the Administrative Appeals (AAT) Decision". Why is this school Board being given the protection of privacy around its compliance whilst the school parents and employees are exposed to the risk of insolvency and remain ill-informed?
Tax payers, parents and staff deserve to know if the school can meet its debts as well as where and how their tax dollar and parents fees are being spent by the BCEL Board. Reporting annual financials is a basic regulatory obligation and corporate function and shouldn't need Court Orders to compel them to do so!
The Only School in Australia Not to Report 2021 Financials!
According to the Education Minister, BCEL is in breach of the Education Act 2013. Brindabella Christian College is the ONLY school in Australia NOT to have reported their 2021 funding acquittal statement, financial questionnaire or financial statements as a condition of receiving ongoing commonwealth funding. The school receives around $10 Million per annum in commonwealth funding. Where is the money? Is future funding at risk?
Read local media coverage of the Ministers concerns around Brindabella's solvency and financial probity as well as results of multiple auditor findings.
27 March Riot Act "Brindabella's Mounting Tax Debt Revealed"
31 March Canberra Times "Auditors Raised Concerns Over Schools Financial Management"
4 April 2023 Riot Act "Ministers Concerns on Brindabella Solvency, Financial Probity Revealed"
7 May 2023 Canberra Time "Brindabella Unable to 'Extinguish' Tax Debt"
In May 2021, the Federal Minister of Education found the BCEL Board of Directors to not be fit and proper persons to be the Approved Authority for Brindabella Christian College and subsequently imposed conditions to help improve their governance and financial management. This decision was immediately appealed by the BCEL Board of three Directors in the Administrative Appeals Tribunal. Final Hearings held at the AAT at the end of March 2023 resulted in an agreement that BCEL would comply with new conditions relating to governance, financial management and financial reporting. These 60 conditions are documented in Court Orders with strict deadlines.
According to the Australian Charities and Not-For-Profit Commission (ACNC), the school Board has also been repeatedly overdue in reporting their annual financials leaving parents, staff and tax payers uncertain of how and where their money is being spent. As the charity trustee, the Board of Directors are accountable to the charity and must act for the charity's benefit. This is not a private business and the Board Chair is not a Managing Director.
The ACNC Charity Register shows 2021 financials are still overdue and 2022 audited financials are due next month. Annual reporting is a condition of charity registration and demonstrates accountability for the public funds it is given.
As a community of staff, parents and students impacted by the current governance and financial management we believe full transparency is the only option to ensure the BCEL Board complies with the conditions imposed by the Federal Education Minister and the AAT. These conditions are intended to assist the school to recover from its significant debts and minimise the risk of insolvency.
If the current Directors do not comply with these conditions, within the timeframes stipulated, then clearly the Minister's original decision must stand - that they are not a fit and proper Board because they can’t even adhere with Court Orders they agreed to.
You can write a short email to Minister Jason Clare and ask for transparency around the schools use of commonwealth funding and if the school is complying with the recent conditions, why aren't the 2021 financials publicly available? Email: firstname.lastname@example.org
You can also write a short email to the ACNC Compliance Team to help demonstrate the degree of community concern around the lack of financial transparency in repeated overdue reporting. Email: email@example.com
If you have a current or past association with BCC, your voice is especially important!. Read more here.
Your support adds weight to our efforts to reform the governance of the school through constitutional change to ensure it can thrive and flourish well into the future as an independent faith based schooling option for Canberra parents under an accountable and transparent governance structure and processes.
25 April 2023 - AAT Proceedings Finalised with Strict Conditions Imposed on Brindabella Board
The matter before the Administrative Appeals Tribunal has been finalised with a set of 60 conditions agreed to by both the Federal Education Minister and the BCEL Board documented in Consent Orders dated 12 April 2023 (copy below).
These Orders essentially provide a 'road map' for the school Board and an opportunity for the Board to save itself and the school.
The sequence of steps and reporting deadlines are intended to assist the school in securing ongoing funding from both the NAB and the Commonwealth and include a requirement to restore a larger Board of Directors with suitable skills and qualifications in accounting and finance and school education to assist the current directors in decision making and financial management moving forward.
The Committee observes the conditions do not require amendment of the constitution to broaden company membership leaving the BCC community entirely dependent on the will and resolve of the Federal Education Minister to oversee and enforce compliance of the self-appointed BCEL Board. Whilst the current three Directors also still hold all the power and control in the schools decision making processes, strict deadlines and frequent auditor oversight have been set out in the Orders.
The Committee intends to keep the BCC community informed about the Boards progress in meeting each of the required steps over the coming weeks and months.
If the current Directors do not follow these steps, within the timeframes stipulated, then clearly the original decision must stand they are not a fit and proper Board because they can’t even adhere to their own agreed Consent Orders from the Tribunal.
Administrative Appeals Tribunal
Consent Orders dated 12th April 2023
On 17 May 2021 the Federal Education Minister found the BCC Board (BCEL) did not satisfy the requirement to be a fit and proper person to be the Approved Authority for Brindabella Christian College in the past, present or on an ongoing basis for the following predominant reasons:
BCEL’s governance arrangements, including but not limited to its policies and procedures, and the size and composition of the Board, are not sufficient to ensure compliance with its obligations under the Education Act 2013 and Regulation; and
BCEL’s financial management is inadequate and BCEL is not operating in a prudent financial environment.
To assist the Board “with its governance and financial management so that it may regain its status as a fit and proper person to be the approved authority for the school”, conditions were imposed varying BCEL’s approval (Ministers submissions to the AAT 16/12/22).
New and Agreed Conditions with Strict Deadlines
New conditions set out in the AAT Orders, specifically address BCEL’s numerous and serious governance and financial inadequacies and are consistent with recommendations made by auditors and the KPMG Report commissioned by the National Australia Bank, the school’s lender.
In accordance with Section 81(a) of the Australian Education Act 2013, these new conditions will remain in place until 1 August 2024 and until the ATO debt is repaid.
Until 1 August 2026, a minimum of five persons on the BCEL Board must be maintained and notification must be given to the minister within 14 days if BCEL breaches its covenants with NAB or any lender.
By 1 April 2023
- expand, and maintain, the Board’s of Directors size from 3 to not fewer than 5 persons and consider further expanding the Board by 1 December 2023;
- expand the board to include at least one current parent;
- improve gender representation by including at least two women;
- expand the boards skillset with experience and expertise in school education;
- ensure a person with accounting and finance experience remains on BCEL’s Finance, Risk and Audit Committee until BCEL has a person with experience in accounting and finance on the Board of Directors;
Accounting and Finance
- the Board must revisit the capability of the accounting and finance team to produce timely and quality management reporting by appointing a professionally qualified accountant as a permanent CFO or Business Manager. The appointment of John Clark on 20 February 2023 is noted.
- the Board, via the Business Manager,
- must ensure the accounting systems processes include functionality to produce monthly reports and forecasts by
(a) business unit (ELC, Junior School, Secondary school and café) and
(b) by campus (Lyneham and Charnwood)
- reconcile and forecast government funding accurately and on a timely basis;
- accurately apportion overheads and finance costs across business units and campuses.
By 6 April 2023
Loan Arrangements of BCEL:
- BCEL must provide the Minister a copy of the letter of offer dated 28 March 2023 from the National Australia Bank regarding its loan arrangements.
- BCEL must provide to the Minister within 14 days, any notification of a breach of covenant with NAB or any other lender.
By 1 May 2023
- The Board must ensure its loans with the NAB are refinanced and can be categorised as long term debt and prove this by verification from an independent auditor;
- The Board must agree a repayment plan with the ATO and if it breaches this arrangement advise the Minister within 14 days;
- The Board must ensure its Business Activity Statements (BAS) are up to date with the ATO and notify the Minister within 14 days if delayed;
By 30 June 2023
- The Board must appoint the Principal to the BCEL Board, or provide a standing invitation and right to attend to all ordinary meetings of the Board.
By 31 December 2023
- The Board is required to implement the recommendations of KPMG’s Independent Business Review for NAB dated 26 October 2022, including:
- expand the boards skillset with experience and expertise in accounting and finance;
- ensure a person with accounting and finance experience, such as Leandre Malan remains on BCEL’s Finance, Risk and Audit Committee until a Board member is appointed with such experience;
Of further concern is the need for AAT Orders to set out conditions requiring routine and ordinary accounting functions to be met, such as:
paying staff superannuation regularly,
resolve and return fringe benefits tax for 2021 and prepare for 2022,
market test a number of existing services like cleaning, advertising and capital expenditure to ensure value for money and fair and reasonable prices are paid,
improve BCC's accounting reports,
meeting mandatory regulatory obligations, and
finalising late financial statements.
6 April 2023 - BCEL Governance and Recent AAT Proceedings
The Committee of the CCR@BCC seeks to update the BCC community with the following information as to the serious matters concerning BCEL governance and the recent Administrative Appeals Tribunal (AAT) proceedings.
Brindabella Christian Education Limited (BCEL) as the governing entity of Brindabella Christian College, sought review in the AAT of the Federal Education Ministers decision made on 17 May 2021 that BCEL was not a fit and proper person to be the Approved Authority of BCC.
Proceedings halted at the end of March with a proposal currently before the AAT to resolve the decision as to whether BCEL is a fit and proper person. We are awaiting the outcome of this.
Documents made available to us by the AAT, reveal significant long-term inadequacies around the school’s governance and financial management (affirmed by multiple audits) have resulted in a precarious current financial position and serious questions about BCC’s current solvency.
In the view of CCR@BCC the only practical solution to resolving this current crisis is to appoint a new board with reform of the current constitution and governance.
Have your say!
Ensure your voice is heard on these important and pressing matters concerning the future of Brindabella Christian College. If you haven’t already, consider joining our membership to add weight to our efforts to ensure BCC can continue to deliver authentic Christian care and education to Canberra families well into the future.
To aid the community in understanding current circumstances, we provide the following information revealed through the AAT proceedings:
BCEL’s Financial Position
2020 audited financials were published after the first day of hearings at the AAT and show a loss of $3 Million. Like the 2019 financials, we note these statements were also nearly two years overdue. They can be viewed here on the Charity Register
2021 financials have not been reported as they are not audited. BCEL’s auditor, Saward Dawson indicated they had insufficient information to provide an opinion. During the AAT Proceedings, counsel for BCEL revealed another loss for 2021 and debts accumulating.
The Minister reports BCEL is the ONLY school in Australia not to have submitted its 2021 audited financials, acquittal statements, or its financial questionnaire.
2022 financials – During proceedings, counsel for BCEL advised the AAT of another anticipated loss as well as likely losses for 2023.
No less than four audits and/or reviews have been conducted of BCEL’s governance and financial management since 2019.
1. Bellchambers Barret (2020) commissioned by the Federal Education Minister (auditing the period 2012 to 2020) following BCEL’s failure to produce documents and information requested;
2. McGrath Nichol (2021) commissioned by the Federal Education Minister for the AAT Proceedings;
3. KPMG (2022) commissioned by the NAB due to escalating debt and unfitness finding of the Minister (under review);
4. Saward Dawson – BCEL’s own auditor appointed for 2019, 2020 and 2021.
The Minister contends that BCEL does not have the financial management of a fit and proper person due to its debts to the commonwealth (ATO) and expressed concerns as to the solvency of BCEL and its operation as a going concern arising from the fact that BCEL’s current liabilities exceed its current assets.
Saward Dawson identified "material uncertainty related to going concern" regarding their audit of the 2019 financials and stated "until such time as the finance facilities (NAB) have been renegotiated and approved, a material uncertainty exists that may cast significant doubt on the company's ability to continue as a going concern". In a February 2022 "Management Letter" addressing 2020 financials, Saward Dawson identified that "the issues it had identified for BCEL as part of the audit process in 2019 had not been addressed by BCEL" and they also cautioned "it is critical the Board and management are focused on steps to ensure a new funding partner can be secured". Saward Dawson provided a "Road Map" on 18 February 2022 to assist "the Board with management, tracking and reporting of its obligations".
The McGrath Nichol report provided to the Minister 19 April 2022 indicated that BCEL was “suffering from severe liquidity issues” and "a number of serious concerns relating to the financial management" of BCEL. They state "It appears that despite auditors raising some of these issues in prior years, there has been little progress in addressing them by the Board and management". They also note, “BCEL’s debt to student ratio has increased from $254 per student in 2016 to $19,387 with the NSW Education Standards Authority Financial Viability Framework providing that a debt per student ratio over $15,000 indicates a high financial viability risk”.
The KPMG Report identified, amongst other things, “significant gaps in expertise and experience” on the BCEL Board.
ATO PAYG Withholding Tax Debt
The 2020 audited financials show a $1.5 Million debt to the ATO. By 2022, documents show this ATO debt had accumulated to $3.4M and counsel for BCEL advised at 24 March 2023, this debt had escalated further to $4.8M.
BCEL entered into a payment plan with the ATO. It breached this payment plan on multiple occasions attracting penalties. The debt to the ATO is also stated as attracting “significant interest” being $37,000 per month (Dec 2022).
Documents also reveal during 2020 and 2021 late lodgement of BAS Statements and payments by BCEL.
NAB Loan Facility to BCEL
Submissions from the Minister and Independent Audits reveals in 2020 the school owed the NAB $14 Million.
BCEL has breached its contract on multiple occasions, including use of another financier without permission from NAB.
The loan facility with NAB is reported to have expired on 31 January 2023 with subsequent arrangements revealed in the AAT proceedings as unclear to the Minister. An affidavit from Mr Major (former Acting CFO) indicates month by month extensions had been provided by the NAB on their loan facilities, since September 2020.
The NAB commissioned its own audit in 2022 by KPMG which made consistent findings with Bellchambers Barret and Saward Dawson and McGrath Nichol. KPMG states “we have not been provided with sufficient information to suggest BCEL has the capacity to service the NAB debt in the short term” and documents reveal KPMG also “criticised the capability of BCEL’s accounting and finance team”.
The NAB has indicated it will not provide further extension these loan facilities on a long term basis until BCEL addresses its governance and financial issues identified in multiple audits.
The school claims it has sought alternative funding arrangements with Westpac and ANZ without success.
BCEL Governance failings identified by the Minister
The Minister states BCEL has not complied with the laws of the Commonwealth relating to the provision of school education under the Act Section 75(5). Following their investigation and with consideration of reports and recommendations of multiple audits of the school’s governance and financial management, the Minister identified the following issues:
BCEL Board failed to adhere to its own Constitution regarding proper decision making, conflicts and full and accurate Board minutes;
There was limited separation between the operational and management functions of the College and a high level of control and influence exercised by the Chairman of the Board;
the Chairman keeping a large volume of BCEL’s records on his own record keeping system and using his personal email address regarding BCEL matters;
the size (3 directors) of BCEL’s Board was too small and did not allow for discussions and decisions to be made should there be a conflict of interest;
KPMG identified the composition of BCEL Board was inconsistent with comparative school boards and significantly, there was no current board representative with degree qualifications in teaching, education, marketing, construction, property or accounting and finance;
BCEL was not operating in a prudent financial management environment and the Minister was particularly concerned about the uncertainty relating to BCEL’s loan arrangements;
The failure to provide audited 2021 financials, acquittal statement and financial questionnaire as required as an Approved Authority;
The existence of a “substantial debt to the commonwealth” in relation to the provision of school education;
The existence of conflicts of interest, related party transactions and transactions where BCEL Board Directors have a material personal interest;
A change from general to special purpose financial reports in 2016 no longer required the disclosure of related party transactions (Bellchambers notes this change in reporting, coincided with Greg Zwajgenberg becoming Chairman of the Board. BCEL’s auditor Saward Dawson advised that “best practice” for not-for-profit entities is to disclose related party transactions through the use of general purpose financial reports.
BCEL had not complied with its complaints policy by failing to keep and maintain a complaints register (In a meeting with Bellchambers Barret in October 2020, BCEL advised the complaints register was empty because “the school has not received any complaints”)
Nor has BCEL has not complied with its obligations under the Education Act 2004, to investigate complaints.
Failure to carry out market testing. The Bellchambers Audit found that BCEL had “not conducted market testing for the procurement of goods and services” which they noted, impacts the ability to assess if value for money is being achieved. (IT services, the Solar Tree, bus advertising and cleaning services were identified). The more recent KMPG report “suggested the absence of market testing is an ongoing issue”.
Related Party Transactions/Conflicts of Interest
Bellchambers Audit observed “there was insufficient information and documentation held by BCEL/BCC to enable related party arrangements to be readily identified or declared. There was no evidence of specific approval of related party transactions in board minutes or other agreements. These transactions were not separately considered as part of BCEL Board decisions and documentation or business plans. Further there was no evidence of market testing or tender documentation to support those transactions”.
“The significance of these transactions, of which eight were provided to the AAT as an illustration that BCEL does not have the governance arrangements of a fit and proper person, is not just that they occurred, but the manner in which they occurred.” “They are characterised by the absence of market testing, non-or insufficient disclosure and the absence of evidence of proper consideration of the issues arising by BCEL’s Board.”
The related party transactions identified by the audits, include:
Global Vision Technologies (Australasia) Pty Ltd (also known as Global Visions or GVT), an entity under the control of Mr Zwajgenberg. The fitout of the new BCC school café and Life UC commercial kitchen in 2014 from goods purchased by GVT from the Canberra Club.
Traffic Infringement by Mr Zwajgenberg paid by the school and multiple personal transactions between Mr Zwajgenberg and the school.
Solar Arena supplied and installed solar panels to the Junior School Building and it was noted as also being in a joint venture partnership with EVT Energy.
Eagle Vision Technologies (trading as EVT Energy) an entity under the control of Mr Zwajgenberg. The provision of a Solar Tree and recipient of an ACT Government grant.
Life Unlimited Church (Life UC) – Alyn Doig shares a directorship with Life UC and BCEL, noting Life UC is also the landlord of BCC’s Charnwood Campus
MIT Solutions, Managing Director Brendon Major held the contract for BCEL’s IT equipment and services and was also engaged by BCEL as Acting CFO on two occasions and Company Secretary.