Enrolment Agreements

DID YOU KNOW?

In May 2022, a landmark decision by the ACT Civil and Administrative Tribunal (ACAT) concerning Brindabella found that under Australian Consumer Law (ACL), parents are legitimate service recipients with clear rights. The ACAT ruling, finding BCC's Enrolment Contract "unfair", drew national attention and sparked initiatives from law firms advising private schools, across the country, to reassess their enrolment agreements and policies.

BCC parents, you have very strong grounds to demand the BCC Board amend the Enrolment Agreement and Policies to comply with the court ruling and current legislation.

Such recognition for parents from this landmark ruling, means private schools are most definitely accountable to parents for the standard of care and education services they deliver. ACL ensures families have protections in requiring the school to provide fair, reasonable and equitable terms in their enrolment contracts, which includes a right for complaints to be investigated.

For the benefit of informing current BCC parents in particular, the Association has collated the evidence of regulatory adverse findings against BCC's enrolment documents over recent years. The ACT Human Rights Commission, Access CBR Fair Trading, the ACT Education Directorate and ACAT identify a significant imbalance between parties, disadvantage to parents, risk of financial loss for parents, a lack of transparency around terms, a failure to respond to complaints adequately and the risk of detriment to parents and children.

Despite ACAT's ruling, multiple regulatory adverse findings and recent Territory legislative reform concerning exclusion of children and elevating parent voice, there is currently no evidence of the BCC Board adopting these reforms and findings, nor its recent parent feedback, into draft enrolment documents circulated in Term 3 2023.

Most serious is the fact the BCC enrolment contract clause 25 (c) regarding notice for withdrawal was found unfair by the Tribunal in 2022 and identified as placing parents at a significant disadvantage and risk of financial loss. This term was subsequently voided by the Tribunal, under ACL, yet it remains in the schools current Enrolment Agreement (2019) and in draft enrolment documents circulated recently to parents.

Under ACL, voided terms are NOT enforceable and retaining them in contract documents is misleading. Under recent ACL law reforms, adopted on 9 November 2023 in order to further protect consumers from exactly such circumstances, it is now unlawful to retain a voided term in contract documentation. You can read more here.

Parents please read the facts below and write to the BCC Principal or BCC Board asking for your enrolment contracts to be amended. Alternatively write to Dept of Fair Trading via Access Canberra here.

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The BCC Enrolment Agreement: Unlawful, Unfair and Unchanged!

Enrolment

The BCC Enrolment Agreement: Unlawful, Unfair and Unchanged

The ACT Human Rights Commission, ACT Fair Trading, ACT Education Directorate, ACT Worksafe as well as the ACT Civil and Administrative Appeals Tribunal (ACAT) have made the following adverse findings in regards BCC’s Enrolment Agreement and policies and/or BCC’s Complaint Policies and practices, in regards staff and parents:

IThe current (as at 19 March 2023) BCC Enrolment Agreement and Policy is available below:

BCC Current Enrolment Agreement

BCC Current Enrolment Policy

New "Parent/Visitor Code of Conduct" Expands Schools Power & Control of Parents

In addition to Enrolment Clauses requiring parents to act "In the Interests of the College", the Association observes BCC has also published a new Code of Conduct for Parents, Carers and Visitors on its website in 2021. This Code introducing a broad range of new measures which allow the school to regulate parent interactions and communications. Any breaches being determined at the sole discretion of BCC Board.

The Code of Conduct states

"Serious breaches of the Parent, Carer and Visitor Code of Conduct may result in the annulment of the enrolment contract" (exclusion of your child from the school).

BCC Code of Conduct for Parents

History

History of the BCC Enrolment Agreement

Contract

ACT Education Directorate Finds BCC Enrolment Policies Contrary to Children’s Safety

A Ministerial Brief from the ACT Education Directorates Executive Group Manager reveals on 20 September 2019 the Education Directorate, in consultation with the Government Solicitor Office, made the following adverse finding against BCC’s current enrolment policy:

“The school’s Enrolment Policy provides for students being excluded should the student’s parents bring BCC into disrepute. This policy position is contrary to s.105 of the Act which outlines the reasons why a student may be excluded from an ACT non-government school and is potentially contrary to the student’s human rights”.

(FOI 2020-010 Part 4 & 5 Document 68).

BCC’s Enrolment Policy currently states:

“Clause 4.4 Brindabella Christian College's Discretion to Expel

A student may be asked to leave Brindabella Christian College if their conduct or performance is unsatisfactory, or they fail to obey Brindabella Christian College's rules and policies. Any decision to suspend or expel a student is at the discretion of the Principal. In such circumstances, the Principal's decision is final.

Where a Formal Offer is accepted, parents, guardians or carers agree to conform to the policies and rules of the Brindabella Christian College set out in the Prospectus and such variations to those policies and rules as are made by the Board of Brindabella Christian Education Limited or the Principal, once such variations have been published in either the College Newsletter or future editions of the Prospectus.

A student may be asked to leave Brindabella Christian College if:

· they breach the Enrolment Agreement;

· the conduct of their parents, guardians, or carers brings Brindabella Christian College, its Board Members, Executive Staff, teachers or staff (individually or collectively) into disrepute; or

· the parent, guardian or carer fails to comply with Brindabella Christian College's rules and policies.”

The Association notes that during re-registration of the school in 2013, the Registration Panel also reported BCC’s enrolment policies required amendments to comply with the Education Act 2004 at that time.

FOI documents reveal BCC provided the Panel with a letter (dated 12/9/13) confirming that “the school has made amendments to documents regarding suspension and exclusion of students to reflect the language of the ACT Education Act”. (FOI EDU 2020-014 - Document 5)

There is no evidence to indicate the 2019 Enrolment Policies (still current on the school’s website) have been amended to comply with the Education Act 2004.

The Education Act 2004 however, has recently been amended itself under the Amendment Act 2022 and adopted into legislation on 20 Dec 2022 as a result of BCC’s unlawful exclusion of two brothers in early 2020 as found by the ACT Human Rights Commission.

The amendments included changes to suspension and exclusion policy previously set out in Section 105 of the Act, to improve provisions for the protection and welfare of students and tighten enforcement powers of the Minister in instances of non-compliance, including the ability to investigate complaints.

Adverse

Significant Legislative Reform Across ACT a Result of Adverse Findings Against BCC

Despite legislative change and multiple notices of regulatory non-compliance, Brindabella’s enrolment contract and policies remain unchanged.

In line with Recommendations made to the ACT Education Directorate by the ACT Human Rights Commissioner in her Final Report into BCC, significant amendments were made to the Education Act 2004 including changes to suspension and exclusion policy previously set out in Section 105 of the Act, to provide for the protection and welfare of students.

“The changes stem from two recommendations made by the ACT Human Rights Commission which investigated a complaint that two children were excluded from Brindabella Christian College after their parents raised concerns over the school's governance.” Canberra Times 8 April 22

New Laws Clarify When Schools Can and Can't Suspend and Expel Students Canberra Times 8 June 22

The ACT Education Minister herself, in her Explanatory Statement attributing the need for non-government school registration reform to the HRC Report into Brindabella’s exclusion of the brothers.

"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," the (Ministers) explanatory statement reads.”

"Canberra Private School Registration to be Overhauled" The Canberra Times (8 April 22)

"Sweeping Changes to Education Laws Proposed After BCC Unfair Exclusion Bradyn Dillons Death" Riot Act (11 April 22)

"Upcoming Changes to School Registration in ACT" School Governance by CompliSpace (13/10/22)

Whilst independent schools are free to enter commercial agreements with parents and write their own enrolment contracts, they are required as a condition of their Registration under Territory Laws, to comply with the Education Act 2004, National Principles of Child Safe Organisations and the Discrimination Act 1991 in all documents, policies and practices.

Background: The HRC’s Recommendations for Legislative Change

In January 2021, the HRC identified the need for law reform in the ACT Education Act 2004 to protect children from unlawful exclusion as a result of their investigation into Brindabella Christian College. The HRC Report into BCC identified:

there was no protection under the Education Act 2004 for a student’s exclusion from the school on the basis of their parents conduct in any contravention of the school’s enrolment agreement.

there was no legislative protected procedural fairness requirements in place for exclusions of students for reasons other than behavioural or conduct reasons, such as those set out in private enrolment contract.

Resulting in the two Recommendations to the ACT Government

Recommendation No 4 – That the ACT Education Directorate introduce registration standards for non-government schools with oversight mechanisms to ensure its able to investigate complaints or concerns about non-compliance.

Recommendation No 5 – The ACT Government introduce amendments to the Education Act 2004 to ensure due process safeguards apply to all decisions made to not re-enrol students including decisions made by non-government schools noting the ACT Government had obligations under the Human Rights Act 2004 to take steps to protect individuals from having their rights breached by third parties, including the right to equality before the law, freedom of expression and the right to education.

The Education Act 2004 Amendment Bill 2022 was passed by the ACT Legislative Assembly and enacted 20 December 2022, satisfying the HRC’s Recommendations.

It’s understood, School Registration and compliance with the new Education Act 2004 and Conditions of Registration will be overseen by a new Registration Standards Advisory Body sitting within the ACT Education Directorate.

Humans

Human Rights Commission Investigation Finds BCC Enrolment Agreement & Policies Contrary to Student’s Safety and Welfare

As a result of the ACT Human Rights Commissions (HRC) investigation into BCC”s exclusion of two brothers in early 2020, the Commissioner made three Recommendations to BCEL which included review and amendments to the school’s enrolment contract and policies within sixty days.

The HRC Commissioners Final Report released on 18 January 2021 made the following findings against BCC and its Board:

Did not appropriately provide a service for children and young people
BCC’s Complaints Policy did not appear to prioritise the safety and well-being of children and young people nor did it appear that complaints are taken seriously, responded to promptly or thoroughly and with consideration for fairness to all parties
Denied students procedural fairness and committed an act of Victimisation causing detriment contrary to Section 98 of HRC Act.
Acted inconsistently with the National Principles of Child Safe Organisations flowing out of the Royal Commission into Institutional Abuse
Did not address questions asked by the HRC, nor did the school or its lawyers respond to the draft HRC report provided to them.

"HRC Says BCC Breached Multiple Child Safety Principles" Riot Act (22 Jan 21)

The Commissioner made the following Recommendations to BCC and its Board as a result of her findings:

Recommendation 1 “That BCC conduct a review of its current enrolment policies, contract and practices to ensure they are consistent with the National Principles of Child Safe Organisations, the Discrimination Act (1991)and the Territory's Education Act 2004”.

Recommendation 2 “That BCC conduct a review of its complaints policy, any other associated complaints guidelines and documents, and complaints management practices, to ensure that they are consistent with the National Principles of Child Safe Organisations, the Discrimination Act 1991, and the Education Act 2004”

Recommendation 3 “That BCC provide a report of the reviews (referred to in Recommendations 1 and 2 above) to the ACT HRC, the ACT Education Directorate and the Commonwealth Education Department, outlining how each of the policies, agreements, and any other associated documents and practices are, or have been amended to be, consistent with each of the principles outlined in the National Principles of Child Safe Organisations, with the protections against discrimination in Discrimination Act 1991 and the obligations in the Education Act 2004.”

The Association notes BCC’s complaints policy has recently been updated. However, there is no evidence BCC’s enrolment agreement or policies have been amended in accordance with the HRC Recommendations.

The Commissioner reminded Brindabella of the legislative requirements of non-government schools, stating in her Report:

“The Education Act 2004 provides some guidance on what constitutes an appropriate education service for children and young people in its requirements for registration of non-government schools in Chapter 4 of the Act. In order for a non-government school to be registered, it must demonstrate that it has appropriate policies, facilities and equipment for the curriculum offered by the school, and for the safety and welfare of its students.”

Further Sources:

"Family Powerless After Embattled School Terminates Boys Enrolments" The Canberra Times (2 Mar 20)

"HRC Slams BCC for Expelling Brothers", The Canberra Times (22 Jan 21)

"BCC Excluded Boys Human Rights Review" ABC News (23 Jan 21)

"Brindabella Took Revenge for Being Called Out on Bad Administration" www.reddit.com

Fair

ACT Fair Trading Finds Free Speech is Limited and a Significant Power Imbalance Exists Placing Children and Parents at Risk

In response to multiple complaints about the delivery of care and education services, parent’s inability to effectively advocate on behalf of their children at the College and the enrolment agreement itself, Access Canberra Fair Trading undertook an investigation and engaged with BCEL and its legal representatives under the lens of Australian Consumer Law (ACL).

Brindabella College Under Fire in Fair Trading Investigation Over Enrolment Policy Riot Act (13 April 21)

Correspondence from - Access Canberra Fair Trading around October 2021, made available to the Association, shows Fair Trading Investigations Team, in response to a complaint about BCC, identified three clauses in the enrolment agreement as possible “unfair terms” under Australian Consumer Law. They expressed the following concerns:

“the breadth of terms, and consequences for the breach, which appear to occur at the sole discretion of BCC, may cause a significant imbalance between parents and the College”.

“the terms appeared to go further than is reasonably necessary to protect the legitimate interests of the College”.

“detriment could arise to the party (or parties) entering the contract if BCC relied upon the terms of the enrolment agreement”.

After some months engaging with BCEL lawyers, noting the above concerns and requesting amendments be made, Fair Trading was unable to enforce amendments to the enrolment agreement or policies as under ACL. Only a Court can determine a clause to be “unfair". BCC's enrolment documents remain unaltered.

Enrolment Clauses Placing Parents and Children at Risk

The relevant clauses identified by Access Canberra Fair Trading Investigations, still present in the current enrolment agreement, are:

“Clause 14 - I/We agree to act in the best interests of the College at all times throughout the duration of the child’s schooling, and agree to seek to positively support the College, its Board and its staff.”

“Clause 15 - I/We will not disparage the College, the Board and its members, staff and students of the College to others or make any adverse comment harmful to the College or its reputation.”

“Clause 33 - Failure to comply with the terms of this agreement: I/We acknowledge that a breach of the above terms may result in revocation of an offer of enrolment, or the child’s suspension or removal from the College, at the sole discretion of the College.”

Recent Landmark Ruling finds BCC Enrolment Contract Unfair

A recent decision by the Act Civil and Administrative Tribunal (ACAT) makes it clear we (parents) are legitimate service recipients with clear rights under Australian Consumer Law. Such recognition means private schools are most definitely accountable to parents for the standard of care and education services they deliver.

ACL ensures families have protections in requiring the school to provide fair, reasonable and equitable terms in their enrolment contracts. Read more below about this landmark ruling impacting private schools across the country.

Landmark

Landmark Ruling by ACAT Finds BCC Enrolment Agreement Unfair

A recent decision by the Act Civil and Administrative Tribunal (ACAT) makes it clear parents are legitimate service recipients with clear rights under Australian Consumer Law (ACL).

"Father's Win Paves Way to Test Private School Fees" SMH Front Page (28 May 2022)

Such recognition means private schools are most definitely accountable to parents for the standard of care and education services they deliver. ACL ensures families have protections in requiring the school to provide fair, reasonable and equitable terms in their enrolment contracts.

On 5 May 2022 ACAT ruled Brindabella’s Enrolment Agreement was unfair under Section 23 of Australian Consumer Law voiding Clause 25 (c) (which required a terms notice for withdrawal of students) and dismissing BCEL’s application to recover fees. (BCEL v RESPONDENT XD 561 of 2021 (Civil Dispute) [2022] ACAT 37)

Despite this ruling by ACAT, and the significant disadvantage to parents the Tribunal identified, Brindabella has made NO attempt to amend or remove this term from its Enrolment Contract or Policies.

2017 Enrolment Agreement (Clause 25 (c)

As signed by the parents (XD 561) and subsequently voided by ACAT in the recent landmark ruling, stated:

“25. I/we agree that:

a) the Administration Fee paid by me/us is not refundable;

b) all College fees are payable within two weeks of issue of each fee statement;

c) one full College term’s notice in writing to the Principal is required for the intended withdrawal of the child, otherwise a full term’s 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.”

2019 Enrolment Agreement (current)

The current Agreement actually extends Clause 25 (c) to require even earlier notice to the school of a withdrawal – being the last day of the previous term!!

“25. I/We agree that:

(a) the Administration Fee paid by me/us is not refundable;

(b) all College fees are payable within two weeks of issue of each fee statement;

(c) one full College term’s notice in writing to the Principal/Business Manager is required for the intended withdrawal of the child, otherwise a full term’s fees will be charged. The written notice must be received at the College by the last day of the previous term. Any notice received after the last day of the term will render parents/carers liable for the fees for the subsequent term in lieu of notice. *Please refer to Terms and Conditions relating to Fee in Lieu of Notice.”

The Association encourages all current parents to contact BCEL Board and BCC leadership to require unfair terms be removed, or amended, from the enrolment contract and the school comply with its obligations set out under Australian Consumer Law and as identified by the ACAT ruling.

If unsuccessful, contact the ACT Education Directorate, Access Canberra Fair Trading or Consumer Law Centre (links below)

Background

The parents had withdrawn their children at the end of 2019 without giving the required terms notice. The College pursued recovery of fees for a full term, $3,785 plus costs plus interest, through ACAT on the basis the parents did not give the required notice. The father did not disagree that he hadn’t given notice, but successfully argued the terms requiring fees in lieu of one full terms notice was unfair. The Riot Act reports

“The parents did not believe they had any room to negotiate the enrolment contract. They argued this was unfair because the school could change essential terms such as fees but did not give families an opportunity to withdraw without facing a financial penalty.”

“Ultimately, the Tribunal agreed, finding that the parents were at a significant disadvantage and the school’s conditions around enrolment were not clearly stated or transparent. It also found that the school failed to prove that the notice provisions were either reasonable or necessary to protect its interests.”

Brindabella Christian College Enrolment Contract Ruled Unfair by ACAT Riot Act 12 May 2022

In order to determine a term “unfair”, there is certain criteria which must first be satisfied under Australian Consumer Law. The Tribunal ruled that BCC’s enrolment contract satisfied the following ACL criteria:

“The enrolment contract was a contract for the supply of services within the meaning of section 23(3) to the parents for the use of their children. The enrolment contract was a consumer contract because it satisfied all relevant criteria set out in section 23(3)”.

“Item 53. The contract was a standard form contract under section 27(2). I accepted that the parents would not have any say in the terms of the contract which was drafted by the school and offered to them on a take it or leave it basis.”

You can read more about this landmark case on the front page of the Sydney Morning Herald here:

Private School Enrolment Contract Could be Challenged After Tribunal Ruling SMH 28 May 22

Private Schools Review Enrolment Contracts After Tribunal Finds Terms Were Unfair, Cbr Times 13 June 22

The Association observes lawyers across the country have been advising schools to review their enrolment contracts on the basis of ACAT’s recent decision re BCC in the first known case applying Australian Consumer Law to school enrolment contracts. The Association is also aware of other parents (NSW) who have successfully protected their interests under ACL as a result of the ACAT ruling regarding BCC.

"Adero Law lawyer Tom Hakkinen said it (ACAT ruling) was a cogent and well-argued decision which could be leveraged by other parents in similar situations.

"This demonstrates that private schools are providing a service, they're accepting money and they've got a lot of bargaining power against parents," Mr Hakkinen said. "I think private schools should take this decision into account, particularly if they have quite punitive measures." Canberra Times 13 June 22

Corney & Lind - Education Law - Enrolment Contracts Advice (read here)

Further Reading, Enquiries or Complaints:

Contact: Access CBR - Fair Trading for Consumers

Contact: ACT Care Consumer Law Centre

"Care Consumer Law principal solicitor Agata Pukiewicz said the organisation "enthusiastically welcomed" the ACAT decision after assisting several clients regarding disputes with the school.

"Based on our clients' experience, the unfairness of such terms has been particularly felt during the COVID-19 pandemic, with many schools closed, parents and carers experiencing financial hardship due to the loss of a job or business and increases in poor health and wellbeing," Ms Pukiewicz said.

Ms Pukiewicz said it would be prudent for private schools to review their enrolment contracts and get legal advice to ensure they comply with Australian consumer law." Canberra Times 13 June 22

Contact: ACT Education Directorate - Complaints, Feedback & Enquiries

Changeorg

Change.org Petition Gathers Over 1,000 Signatures - "Help Protect Our Children at BCC"

During 2020, a Change.org Petition "Help Protect Our Children" started by BCC parents following the sudden exclusions of two brothers from Brindabella Christian College, just two weeks before the 2020 school year commenced, quickly gathered immense community support and outcry.

The Petition's purpose was two fold:

(i) to show clearly the community’s position in regards the safe guarding and well-being of all children at Brindabella Christian College; and

(ii) to collectively support the case of the Jayatilaka family who are defending the rights of their children to remain at the school by challenging the termination of their enrolments as unlawful.

Collectively, over 1,000 members of the BCC community expressed outrage at the exclusion of the two brothers stating:

“As a community and affiliates of Brindabella Christian College, we do not support

the termination of an enrolment, which directly impacts children, as an acceptable

way to resolve a concern, complaint or dispute between parents and the school”.

The recent Territory legislative reform (reflected in the Education Act 2004 Amendment Bill 2022) to better safeguard children's safety and welfare and ensure the ACT Government has the power to investigate complaints about the Proprietor of a School is welcomed.

However, until repair is undertaken by the BCEL Board to amend BCC's current version of Enrolment Agreement and Policies (dated 2019) children and parents remain vulnerable and at risk.

The Change.org Petition "Help Protect Our Children at BCC" can be viewed and supported here. Signatures are still welcomed as the Association seeks to advocate for better protection in BCC's Enrolment Agreement and School Policies.

Notably Thirty-Three Matters Before ACAT Since 2016

The Association recently requested a litigation search from the ACT Civil and Administrative Tribunal (ACAT). The records show Brindabella repeatedly engages lawyers and initiates legal action against parents.

The search record indicates since 2016, thirty-three matters have reached hearings at the Tribunal where final orders were made or where agreement has been reached between the parties. There may be more, settled prior to hearings. The Tribunal observed this quantity of matters as “notable”.

Read your contract parents! For your further information:

“Brindabella Christian College has argued its prospectus is aspirational and not a legal commitment to provide a certain quality of education as it battles to get parents who withdrew students from the school to pay fees.

The college took a number of parents to the ACT Civil and Administrative Tribunal (ACAT) for unpaid fees after they withdrew students from the school without giving the amount of notice stated in the enrolment agreement.” reports the Canberra Times 24 Sept 2020

School Says Prospectus is Aspirational Canberra Times 24 Sept 20