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Board Declared Unfit

DID YOU KNOW?

On 17 May 2021, the Federal Education Minister found the BCEL Board "not fit and proper" to be the Approved Authority for Brindabella Christian College.   Conditions were subsequently imposed to improve the governance and financial management of the College, however the BCC Board immediately appealed the decision, seeking a Review by the Administrative Appeals Tribunal (AAT).  The Review has been ongoing since June 2021 with four days of Final Hearings held the week of 27th March 2023. 

 

Proceedings halted on 30 March 2023.   A proposal is currently before the AAT to resolve the decision as to whether BCEL is a fit and proper person.  We are awaiting the AAT outcome and will update, as and when more information comes to light, through our website CCR Broadcast page and on facebook.  Please keep these proceedings in your prayers!

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The Federal Education Ministers finding of “unfitness” and the BCEL Directors decision to use precious school resources (around $280,000 to-date according to BCEL's legal representatives stated during AAT Proceedings) to appeal conditions imposed by the Minister to improve BCC's governance and financial management, is of primary concern to the Association and its members. 

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The Association supports the decision and action taken by the Federal Minister to improve the governance and financial management of Brindabella Christian College.  Accountability and transparency are fundamental characteristics of all charities and foundational to effective governance.  Read more below!

Proprietor Found Unfit by the Federal Education Minister

Following numerous complaints from the BCC community, high losses of staff and teachers and multiple regulatory interventions as well as a request from ACT Education Minister following an Authorised Persons Audit Report by the Education Directorate which identified multiple non-compliance issues, the Department of Education and Federal Education Minister commenced an investigation into complaints around misgovernance, poor financial management and a lack of transparency and accountability.

 

The Commonwealth Department of Education approves non-government school proprietors as Approved Authorities to receive funding for students and requiring them to be (amongst other things) a not-for-profit entity and fit and proper.

 

AAT Records reveal, on 17 May 2021 the Minister made the decision that Brindabella Christian Education Limited (BCEL) is not a fit and proper person to be the Approved Authority for Brindabella Christian College.  Concerns were expressed around the school’s compliance with the Education Act 2013 and issues raised around: it's not for profit status, related party transactions, possible benefits to directors and financial viability.   (AAT Records: BCEL and Minster for Education and Youth [2021] AATA 4629 (25 November 2021)

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As a result of this decision, the Minister varied BCEL’s Approval imposing conditions for BCEL to review and change governance arrangements, improve the financial management of BCC, engage an independent review of the school’s financials and report specifically, related party transactions, in the 2020, 2021, 2022 and 2023 financials.  

 

The Association notes as of April 2023, only the 2020 financials have been reported to the ACNC and the school is currently red-flagged by the ACNC.  

 

This decision by the Minister was immediately appealed by the BCEL Board with an application for Review by the Administrative Appeals Tribunal lodged in June 2021.  We are still awaiting the outcome of this review.

 

 

“Education Minister Yvette Berry has urged her federal counterpart to pull into line a high-profile independent school that has come under scrutiny from multiple government agencies.  Brindabella Christian College could also have its childcare service shut down if it fails to comply with a new condition on its licence.”

 

As a result of investigations conducted between 2019 and 2021, the Department of Education (formerly DESE), as a delegate for the Federal Minister of Education, found BCEL was in breach of the Federal Education Act 2013 and  consequently determined on 17 May 2021 that BCEL “was not a fit and proper person to be the Approved Authority for Brindabella Christian College” as required under Section 75 (5) of the Education Act 2013. 

 

The AAT records indicate “when statements of issues were exchanged between parties” the Federal Ministers statement of issues included the following:

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“whether the Applicant does not comply, is not complying, or has not complied, with requirements that it:

- not conduct the School for profit, pursuant to section 75(3)

- be financially viable, pursuant to section 75(4)

- be a fit and proper person to be an approved authority for the School, pursuant to section 75(5).”

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The Federal Ministers delegate subsequently decided to vary BCEL’s approval as an Approved Authority and imposed certain conditions on the approval.  The conditions required changes to, and a review of, Brindabella’s governance arrangements and financial conditions were imposed including conditions that:

 

- BCEL’s audited financial statements for 2020, 2021, 2022 and 2023 must disclose related party transactions; and

- BCEL engage an independent professional to review its financial affairs.

 

Questions exist around the use of school resources:  possible personal benefit or for an improper purpose or otherwise inconsistently with BCEL’s not-for-profit purpose. 

 

On 25 June 2021, BCEL’s legal representatives successfully obtained a stay (pause) on the conditions until the review is finalised and a decision made by the AAT. 

 

The ACNC Charity Register shows the school receives around 45% of its annual revenue, around $10 million, from government funds.  The remainder of its income from parent fees.  From previous financials reported, this amounts to around $60 million in revenue unaccounted for over the last three years.

 

 

“Brindabella Christian College’s owner, Brindabella Christian Education Ltd (BCEL), continues to appeal an adverse finding in the Administrative Appeals Tribunal that as an “approved authority” it is not a “fit and proper person” to manage the school”. reports the Riot Act 12 May 22.

 

AAT Records also reveal:

 

- an independent audit of the College was conducted by Bellchambers Barrett on behalf of the Department of Education (formerly DESE) forming part of their investigation into compliance and,

 

- a summons for the audited 2020 BCC financials from Saward Dawson, BCEL’s nominated auditor, by the Minister was set aside by the Tribunal on 15 Dec 2021.

 

The Association notes concerns of financial fragility as its 'financial viability' has previously been flagged as concerning also by ACT Education Minister Yvette Berry (financial viability being a condition of school Registration in the Territory).  The ACT Ministers further investigation into its financial standing however, was paused, due to disruptions caused by covid-19 until the school is next due for its Registration Renewal (being 2023) as reported by the Canberra Times on 1 October 2020.

 

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“Brindabella Christian College parents say they’ve been advised that Federal Education Minister Dan Tehan’s office is now engaged with the ACT Education Directorate in reviewing the school’s compliance with State and Federal regulations.  The development is the latest in a long saga at the school, now governed by a Board of just three including chair Greg Zwajgenberg.”

 

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Fitness

BCC Board Refuses Fitness Reassessment Following Findings of Inappropriate Conduct Towards Children

In May 2019, a complaint was received by Children's Education and Care Assurance (CECA) regarding inappropriate conduct of educators towards children at Brindabella Christian College's Early Learning Centre.

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An ACT Education Ministers Annual Report Hearing Brief dated 19/2/21 indicates the following:

 

Following an investigation of the complaint, a Show Cause Notice was issued to BCC by CECA. The Board Chair responded to the Notice on behalf of the Provider (Doc 39 & 40) (FOI CMTEDD ETD29092020_0002).

 

The Brief states the Board Chair "demonstrated a lack of understanding of what conduct is acceptable under the National Quality Framework (NQF), in particular by advocating that a range of conduct set out in the evidence was acceptable.” 

Annual Report Hearing Brief - Copy.png

The Canberra Times (16 Nov 20) reports

 

“Senior management at Brindabella Christian College were instructed to attend an assessment of fitness and propriety following allegations children were threatened and force-fed at its early learning centre in Charnwood.

 

Documents released under freedom of information laws show Children's Education and Care Assurance (CECA) received a complaint in May 2019 from someone who witnessed an educator on duty at the early learning centre tell a child words to the effect of "if you don't stop being naughty I'll send you somewhere else and you won't be able to come back here or see your mummy or daddy again". A child who was rolling on the floor during library time was allegedly told by an educator "you're being feral today".  The article continues….

 

“The complainant also reported that an educator dragged a child out of bed to the lunch table and spooned food into a child's mouth, holding their chin closed and their arms down when they tried to push away"

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The assessment, scheduled for 17 January 2020 however, was delayed due to bushfires and the pandemic. When CECA recommenced normal regulatory practices, “an invitation to reconvene the assessment for fitness and propriety” was re-offered to BCC for late September 2020. 

 

The provider however, declined to undertake it.  The Minister's Brief noting under the National Law there is no power for CECA to compel participation in the assessment.

 

The Canberra Times (16 Nov 20) report indicates

 

In a reply to BCC’s lawyers, “CECA director Susan Sullivan wrote that the concerns stemmed from the provider's "demonstrated lack of understanding of appropriate interactions between educators and children" and attempts to justify the behaviour as part of daily routines.  "From a fitness and propriety perspective, the Provider's lack of understanding of the reasons the educators' conduct was inappropriate is substantially more concerning than the conduct itself," Ms Sullivan wrote.”

 

The Annual Report Hearing Brief indicates during October and December 2020, CECA engaged with BCC’s lawyer to “provide an opportunity for BCC to demonstrate by other means that the subject of the fitness and propriety assessment could satisfy CECA that they held the necessary knowledge, understanding and capability to operate a service.  No alternative means of assessment was proposed and consequently CECA determined that fitness and propriety could not be demonstrated.”

 

On 18 January 2021, CECA decided to impose a condition upon BCC’s Provider Approval as it was not satisfied that BCC had demonstrated an understanding of their obligations under the Education and Care Services National Law.  The condition required BCC to appoint a person with management and control, with the requisite knowledge, understanding and capability to operate an early childhood service.

 

On 1 February 2021, BCC’s lawyers lodged an internal review of this decision however the internal review upheld CECA’s original decision to impose the condition.

 

FOI Documents support these findings and set out the nature of the complaint and investigation as well as the extensive engagement and regulatory effort to bring the school into compliance over child safety and welfare matters.  (FOI ETD29092020_0002, EDU19052021_009 and 008)

 

 

“An Education Directorate spokeswoman said the college had two weeks from April 17 to comply. "Should Brindabella Christian College not comply with the provider condition, CECA would consider an appropriate course of action that is proportionate and meets the obligations for procedural fairness," the spokeswoman said.”   The article also indicates…

 

“The directorate brief indicated that governance issues at this college would contribute to the current review of registration conditions and processes for all non-government schools.” reports the Cbr Times.

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WHS

WH&S Improvement Notices & Fair Work Commission

Unsafe work practices and processes, and inadequate policies and procedures have been identified on multiple occasions at the College and reported widely in the local media dating back particularly to 2019. 

 

The Association has uncovered more recent compliance action by ACT Work Safe indicating there has been recent instances of unsafe work practices at the College pertaining to bullying and harassment and inappropriate complaints handling.

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Unsafe Workplace finding in 2022

 

WorkSafe ACT documents (CMTEDD FOI 2022-204), obtained under an FOI request in October 2022, disclose the issuing of another recent Improvement Notice and unsafe workplace psychosocial hazards (alleged bullying & harassment in the ELC); “unreasonable behaviours”; and, complaints not managed “impartially or confidentially” as a result of complaints being investigated by the same persons as the complaints were about. 

 

Further inspections and/or compliance actions, beyond the Six Improvement Notices issued in late 2019, are also noted in May, July & November 2021 and as recently as February 2022 and March 2022.
 

 

Unsafe Workplace findings in 2019

 

Documents obtained under FOI Laws show Work Safe recorded large numbers of staff leaving BCC during 2019, failure to display bullying and violence policy in staff room as directed, and limited consultation with workers in developing new wh&s policy. 

 

Work Safe records show multiple complaints were made by BCC staff between July and September 2019 regarding:

 

  • Bullying and harassment of workers by the Board of Directors and/or the Board Chair,

  • Psychological harm and intimidation of workers by the Board of Directors and/or the Board Chair, and

  • Bullying by the Board Chair, as well as noting

  • a complaint to Education Minister about the operation and governance arrangements at BCC.

 

(CMTEDD FOI 2020-033)

Canberra Times reports 23 August 2019

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“..WorkSafe ACT has confirmed it is looking into allegations of bullying and harassment against staff as dozens of people speak out on what they call a toxic culture of intimidation and control wielded by the college's board.

 

Following the shock resignation of principal Christine Lucas last month, a Canberra Times investigation has uncovered years of complaints and hundreds of thousands of dollars in workers compensation payouts centred on claims of heavy-handed interference by the board - which it denies.”

 

As a result of these complaints, Work Safe conducted an investigation and Issued Six Improvement Notices in December 2019 giving BCC until early March 2020 to comply.  The Association notes FOI records show the school complied with these notices on 15 April 2020.

 

The Riot Act reports 16 December 2019

 

“The notices specifically cover the development and documentation of processes and procedures, including:

  • Risk assessments for hazard identification, incorporating psychological hazards such as bullying and harassment

  • Methodology for investigating complaints

  • Ensuring appropriate training and instruction is available for workers

  • Consulting workers on the development of policies and procedures, and

  • Having systems in place to ensure officers exercise appropriate due diligence."

 

Canberra Times reports 14 Dec 2019

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 “Work safety commissioner Greg Jones said the watchdog could not, under the legislation, investigate specific cases of bullying or harassment but the number of psychological injury claims made against the school in recent years had helped tip them off. Investigators did not consult with staff directly affected but grilled both the school's board and senior staff on their systems”. The article continues…

 

“But records from the Fair Work commission, released under Freedom of Information laws, reveal at least four claims of bullying have been made against the college's governing not-for-profit in the past nine years, and nine disputes have also been lodged by staff in that time.

 

The Canberra Times has also confirmed at least four worker's compensation claims alleging workplace bullying have been approved for payouts in recent months while multiple staff have spoken of a grave toll on their health.  Others have described feeling watched, threatened or belittled by board members over the years, and pressured to stay quiet."

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Journalist

Investigative Journalist Brings into Light Years of Complaints and Bullying

"Canberra Times journalist, Sherryn Groch, now working for The Age, Melbourne, was awarded a 2020 Walkley Award for uncovering “years of complaints and hundreds of thousands of dollars of worker's compensation payouts relating to bullying and intimidation allegations levelled at the (BCC) college board.”  The Canberra Times 17 June 2020

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"Canberra Times Journalist Honoured at Mid Year Walkley's", The Canberra Times (17 Jun

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Walkley Winner - Copy.png

Her articles shining a light on the BCC Board and years of complaints at Brindabella Christian College include:

 

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Flag

Warning Flags Identified by Royal Commission Exist at BCC

The Association knows the teachers and executive at BCC take child safety seriously.  We want to ensure BCEL provides a governance that enables a culture that prevents harm to children. 

 

The Royal Commission into Institutional Sexual Abuse of Children identified several warning signs related to accountability and transparency in institutions, including schools.  They include a lack of policies and procedures, failure to report allegations, inadequate responses to allegations, lack of transparency, and poor governance.

 

The Association observes the following regulator findings and actions regarding BCC and/or its Board:

 

  • the federal ministers finding that BCEL is not a fit and proper person to be the Approved Authority of BCC.

  • the absence of annual mandated reports, both financially and operationally,

  • the lack of transparency around BCC’s financials over recent years

  • the high turnover of staff and executive, including high number of Fair Work Commission complaints

  • the adverse findings against the Board by the Human Rights Commission,

  • the adverse findings against the Board and ELC Provider by Children’s Education and Care Assurance (CECA)

  • the adverse findings of the Education Directorate in regarding reporting discrepancies as much as 41% in the student transfer data, and inadequate complaints handling,

  • the adverse findings by ACT Work Safe regarding unsafe work practices related to bullying and inability to safely make complaint

  • the absence of a publicly listed whistleblower policy,

  • the broad amendments to the Education Act 2004 as a result of BCC’s conduct,

  • enrolment contract and policies which have not been amended to satisfy the National Principles of Child Safe Organisations as recommended by the HRC in 2021,

  • unfair Enrolment contract clauses limiting free speech for parents as identified by ACAT and Access Canberra Fair Trading in 2021 and 2022,

  • No current functioning P&F,

  • The removal of mechanisms for Board accountability through amendments made to BCEL’s governing documents (the Constitution) confining membership of the charity to the directors alone, the removal of sunset clauses and annual electoral cycles, allowing directorships for life, and

  • no representation of school community stakeholders in a broad membership of the charity

 

Parents have options to demand transparency and accountability from the Board.  Write to them directly at board@bcc.act.edu.au.  If the Board is unresponsive, parents can make complaint to:

 

- Federal Education Minister Jason Clare at minister.clare@education.gov.au

- ACT Education Minister Yvette Berry at berry@act.gov.au

- Shadow ACT Education Minister Jeremy Hanson at hanson@act.gov.au

- Australian Charities and Not-for-profits Commission (ACNC) at compliance@acnc.gov.au

- ACT Human Rights Commission here

 

Consider becoming a member of the CCR@BCC and add your voice to support the Association’s push for accountable governance through constitutional reform. 

 

 

Further Supporting Facts

 

Arising out of the Royal Commission, a set a National Principles (listed below) were developed to give a nationally consistent approach to creating organisational cultures and practices that promote the safety and well being of children, giving effect to the child safe standards it recommended.   

 

  • In early 2021, the ACT Human Rights Commission had cause to make specific Recommendations to BCC and its Board to review and amend its policies and practices to ensure it acts consistently with the National Principles and upholds the rights and interests of children.  Breaches against these Principles featured heavily in the HRC Report.

 

  • Likewise, in January 2021, CECA imposed a condition on BCEL’s ELC Approval following the Board’s "demonstrated lack of understanding of appropriate interactions between educators and children" and attempts to justify the behaviour as part of daily routines, wrote CECA director Susan Sullivan according to Canberra Times reports 16/11/20.

 

The condition to vary BCC’s ELC approval/licence followed a refusal of the Provider (specifically documented as the Board Chair) to sit a fitness and propriety reassessment requiring CECA. (FOI CMTEDD ETD 29092020_0002)

 

  • ​The HRC findings and report into BCC has also resulted in amendments to the ACT Education Act 2004, through the Amendment Bill 2022 introduced into legislation at the end of 2022.  Changes to the Education Act 2004  increased government oversight of non-government schools

 

“…the (HRC) commission recommended the ACT Government amend its education laws to ensure appropriate safeguards apply to decisions not to enrol or re-enrol students and that it examine how effective its oversight mechanisms for non-government schools were.”

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 “Ms Berry said the vast majority of non-government schools had high quality services and were compliant with legislation, but the new scheme will give clear registration standards.   The explanatory statement for the bill said the changes for non-government schools were partly shaped by the Human Rights Commission's report into Brindabella Christian College.”

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The Ten National Principles of Child Safe Organisations

 

The National Principles have been broadened beyond the scope of the Royal Commission to cover broader forms of harm against children and were formally endorsed by Prime Minister Scott Morrison and adopted by all commonwealth, state and territory governments in 2019.

 

The first three Principles require that a child safe organisation will ensure that parents and carers are fully informed and involved in matters concerning their children’s well being. 

 

  1. Child safety and wellbeing is embedded in organisational leadership, governance and culture.

  2. Children and young people are informed about their rights, participate in decisions affecting them and are taken seriously.

  3. Families and communities are informed and involved in promoting child safety and wellbeing.

 

Breaches of these child safety principles featured strongly in the ACT Human Rights Commission’s (HRC) January 2021 Final Report into Brindabella Christian College following the sudden exclusion of two brothers at the start of the 2020 school year. 

 

The Report noting:

 

“the school’s decision to not allow the two brothers to re-enrol at BCC in 2020 is inconsistent with the National Principles of Child Safe Organisations as endorsed by all Commonwealth, state and territory governments on 1 February 2019, arising out of a recommendation from the Royal Commission into Institutional Responses to Child Sexual Abuse.”  The Report continues,

 

“In particular, it is inconsistent with Principle 2 which provides that children and young people are to be informed about their rights, participate in decisions affecting them and are taken seriously, and with Principle 3 which provides that families and communities are informed, and involved, in promoting child safety and wellbeing.”  And continues,

 

“The decision to not allow the two brothers to re-enrol is also inconsistent with Principle 4 which states that equity is upheld and diverse needs respected in policy and practice. One of the key action areas for this Principle is that children and young people have access to information, support and complaints processes in ways that are culturally safe, accessible and easy to understand.

 

This is supported by Principle 6 which provides that processes to respond to complaints and concerns are child-focused. From the information provided to the Commission, it does not appear that BCC’s complaints policy prioritises the safety and wellbeing of children and young people or that complaints are taken seriously, and responded to promptly and thoroughly, with consideration for fairness to all parties.”

 

The Association notes the National Principles of Child Safe Organisations will become legally enforceable in the ACT in late 2023 as outlined in the following article by "School Governance by Complispace".

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"Key Child Safety and Workplace Relations Issues That Will Affect Non-Government Schools in 2023"

 

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HRC

HRC Censures Boards Unjust Treatment of Students and Parents

ACT Human Rights Commission

 

Two weeks before the commencement of the 2020 school year, lawyers acting for BCC terminated the enrolments of two brothers.  One about the commence Year 12, the other starting Year 9 and both nominated school leadership and musical roles for the coming year.  Their older sister, College Captain the previous year, had been suddenly suspended part way through the end of year school Presentation Night for ignoring school leaderships attempts to censor her College Captain Student Address.

 

The circumstances around both actions are well documented in local media (links below) and in the Associations opinion, further demonstrate unjust treatment of parents and students by the BCC Board, affirmed by the ACT Human Rights Commission.

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“Ms Jayatilaka said the boys' exclusion was retribution for her complaints against the school — a claim the Human Rights Commission yesterday upheld”.  ABC News 
 

 

The HRC Findings

 

Following the investigation of a complaint made to the ACT Human Rights Commission about the “decision made by BCC and by the Chairperson of the BCC Board, to not allow her (the mother) sons to be re-enrolled at BCC in 2020”, the Commissioner made the following adverse findings:

 

  • BCC Board committed an act of Victimisation breaching Section 98 of the HRC Act,

  • BCC failed to provide a service for children and young people appropriately,

  • BCC acted contrary to the principles of procedural fairness,

  • BCC failed to meet national child safety standards,

  • BCC failed to take complaints seriously, respond promptly and thoroughly with consideration for fairness to all parties, and

  • BCC failed to address questions asked by the HRC in their investigation.

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Victimisation contrary to the HRC Act

 

The Commissioner’s Report notes:

 

“The mother had previously brought a complaint to the Commission in September 2019 regarding the management and handling of a student complaint involving her daughter by BCC and the BCC Board. This complaint had centred on comments made by the Chairperson about her daughter who was in Year 12 at the time and was the College Captain, and on the response by BCC and the Board to the concerns raised by her daughter.”  The Report continues….

 

“The Commission is of the view that BCC has caused a detriment to the mother and to her family in not allowing her sons to be re-enrolled because she had made a complaint to the HRC about the way in which BCC and the BCC Board were providing a service to a child or young person.”

 

BCC Board Snubs the Human Rights Commission

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“Speaking to ABC Radio Canberra, Ms Toohey said BCC had snubbed opportunities to be involved in the investigation.  She said she hoped with the release of its report, the school would now speak to the agency.” 

 

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The Association has also been shown correspondence from late 2019 to the HRC from BCEL lawyers on behalf of the Board Chair, stating that he refused an invitation to participate in conciliation with parents and a student from the school to address a specific complaint about his conduct and directives which had impacted the student.  The lawyers write:

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“I am concerned that in this instance the auspice of the HRC is an abuse of process and I query the jurisdiction of the HRC which may arise from a complaint in the form and substance of that which befalls my client.”.

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HRC Recommendations

 

As a result of its investigation and findings, the HRC recommended BCC conduct a review and update of its enrolment contract and policies, including its complaints handling, to ensure they were consistent with the National Principles of Child Safe Organisations, Discrimination Act 1991 and Education Act 2004.

 

The HRC also recommended that the ACT Education Directorate and Minister undertake a complete review of the non-government school registration, review, and compliance processes.  It recommended the development of comprehensive registration standards for non-government schools and oversight mechanisms of non-government schools to ensure it is able to investigate complaints or concerns about non-compliance with registration standards.   These were introduced into legislation at the end of 2022 in the Education Act 2004 Amendment Bill 2022.

 

Secondly, the HRC recommended that the ACT Government “introduce amendments to the Education Act 2004 to ensure due process safeguards apply to all decisions made to not enrol or re-enrol students, including decisions made by non-government schools.

 

The Commission notes the ACT Government, as a public authority, has obligations under the Human Rights Act 2004 to act consistently with human rights, including the right to equality before the law, freedom of expression, and the right to education. This includes taking steps to protect individuals from having their rights breached by third parties.”

 

Sweeping Changes to the Education Act as a Result of HRC Findings Against BCC

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“The report by the Human Rights Commission, alongside provisions identified for update has resulted in a complete review of the non-government schools’ registration, review and compliance processes”

stated Education Minister Yvette Berry in her Explanatory Statement concerning the Education Act Amendment Bill 2022

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BCC’s Enrolment Agreement and Policy Remain Unaltered!

 

Parents ought to be aware there is currently no evidence the school has enacted the HRC’s Recommendations.  The enrolment agreement and enrolment policies do not appear to have been amended as required.   The school’s enrolment agreement, published on the school’s website, is still noted as the 2019 version. 

 

The school has however, recently updated its Complaints Handling Policy which can be viewed on the school's website:  https://www.bcc.act.edu.au/lyneham/why-choose-bcc/who-we-are/bcc-publications

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