Private schools have been seeking legal advice after a landmark decision which found a Canberra school's enrolment contract was unfair.
The ACT Civil and Administrative Tribunal found a clause in the Brindabella Christian College enrolment contract requiring a full term of notice before leaving the school was unfair and therefore void under Australian consumer law.
The father involved in the case, who cannot be named to protect the privacy of children, told The Canberra Times he withdrew his children from the school because he lost work and could not afford the fees.
Because he had not informed the school in writing one term before withdrawing his children near the end of 2019, Brindabella Christian College pursued the parents in ACAT for $3785.20 for fees for term 1 of the following year in lieu of notice.
The parents argued the term was unfair as the school was able to unilaterally change the contract, including the fees, with no opportunity to withdraw their children without being penalised.
Senior Member Elspeth Ferguson found the notice period was not reasonable or necessary to protect the interests of the schools.
An ACAT spokesperson said on Friday the school had not appealed the decision.
Brindabella Christian College did not respond to questions from The Canberra Times.
The decision is believed to be the first time a school contract has been found to be a standard form contract and for a term of a school contract to be unfair.
Adero Law lawyer Tom Hakkinen said it 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."
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.
"On a systemic level, we would welcome Access Canberra investigating and addressing private schools' enrolment contracts to ensure their compliance with the Australian consumer law," she said.
An ACT government spokeswoman said whether the decision had implications for other private schools was dependent on the context of each individual school's contract as a whole.
"Access Canberra regularly undertakes education in relation to Australian consumer law. This includes informing the public about their rights and responsibilities when it comes to unfair contracts," the spokeswoman said.
"Given the ACAT decision was based on the specific circumstances of the case, Access Canberra cannot provide specific guidance to all parents and schools."
Association of Independent Schools of the ACT executive officer Andrew Wrigley said the association had received legal advice on the matter and passed it on to member schools.
"I think that it could be interpreted that there was a timing issue so that schools would be encouraged to provide information for fee increases to allow parents to make decision should they wish to withdraw," Mr Wrigley said.
"Generally schools are well in advance of that time frame for informing parents of potential fee increases."
Clauses requiring one term of notice before withdrawal are very common for independent schools in Canberra.
Marist College, St Edmund's College and Emmaus Christian School charge a full term's fees if the notice period is not given.
Orana Steiner School, Canberra Grammar School, Canberra Girls Grammar School and Radford College charge half a term's fees if one term of notice is not given.
Blue Gum School charges up to 10 school weeks' fees if that amount of notice is not given while Burgmann Anglican School charges $650 plus outstanding tuition fees in lieu of a term's notice in writing.
Daramalan College requires one month's notice in writing or else a full term's fees will be charged.
Catholic schools operated by the Canberra Goulburn Archdiocese ask for at least two weeks' notice before withdrawal in the first half of the term to have half of their fees refunded. If the child leaves in the second half of the term they will not get a refund for that term but can get a refund for the subsequent term fees.
Director of Catholic education Ross Fox said the system reviewed its school fees and levies policy as part of a regular review cycle in February this year.
"Our approach to refunds of fees where a child unenrols from a school has not changed since at least 2011," Mr Fox said.
"We will examine the recent ACAT decision however our current understanding is that it will not affect our policy or have further implications for Catholic schools in the ACT."
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