AISNSW has made amendments to our sample enrolment conditions which are available for member schools. A copy of the amended Sample Conditions is available here.

The amendments have been in the light of changes to the Competition and Consumer Act 2010 (Cth) (Act) which will take effect from 9 November 2023.

In summary, the amended law applies to “consumer contracts” and provides that “standard form contracts” must not be unfair. The enrolment conditions provided by schools are standard form contracts within the meaning of the Act.

If a contract term is found to be unfair it will be unenforceable and a person affected may seek redress for the loss or damage suffered. The Act also provides that the ACCC and State regulators may seek orders in relation to unfair conditions.

When determining whether a term of a contract is unfair a court will consider whether the term:

  • would cause a significant imbalance in the parties’ rights and obligations,
  • is reasonably necessary to protect the interests of the person advantaged by the term, and
  • whether it would cause detriment to a party if relied upon.

The principal changes to the Sample Conditions to ensure they are not unfair involve a requirement that decisions and discretions must be ‘reasonable’. This requirement has been included in clauses 2.1, 3, 4.3, 4.4, 4.10, 5.4, 9.1, 9.2, 10 (c) and 12.1 (d).

There are also 2 clauses which we draw to your particular attention.

Enrolment Fees

The previous Sample Conditions stated that where an enrolment fee is charged it was not refundable. Some schools require enrolment fees to discourage the practice of some parents in enrolling their child in multiple schools and making a decision as to their final choice just before the enrolment commences. This could have a considerable negative impact on the school.

The sample contract has been amended as follows:

1.3      If the student does not commence the enrolment, the enrolment fee will not be refunded unless the School, acting reasonably, agrees that there are special circumstances supporting a full or partial refund. A decision to enrol the student at another school will not, of itself, constitute special circumstances.

This revised clause provides the enrolment fee is not refundable but provides that there is a discretion to provide a refund in “special circumstances”. However, it also indicates that a decision to enrol a child at another school will not constitute special circumstances.

It is noted that if the enrolment fee is substantial a school would need to be careful in the exercise of its discretion.

Notice of Fee Increases

A decision by The ACT Civil and Administrative Tribunal in May 2022 relating to Brindabella Christian School found that the school’s enrolment contract was unfair by requiring a term’s fees in lieu of notice in circumstances where the school had increased its fees and the parents withdrew their child when they could not afford the new fee.

In order to meet this issue the provisions of the Sample Conditions were amended by including clause 5.3. Clause 5.4 to remove any suggestion of “unfairness” in relation to these provisions.