Alekdit Pty Ltd (trading as Giggling Day Care Centre) and Secretary, Department of Education and Training

[2018] AATA 4639

Alekdit Pty Ltd (trading as Giggling Day Care Centre) and Secretary, Department of Education and Training [2018] AATA 4639 (6 December 2018)

Division:GENERAL DIVISION

File Number:           2018/1305

Re:  Alekdit Pty Ltd (trading as Giggling Day Care Centre)

APPLICANT

AndSecretary, Department of Education and Training

RESPONDENT

DECISION

Tribunal:Senior Member B J Illingworth

Date:6 December 2018

Date of written reasons:        18 December 2018

Place:Adelaide

The Tribunal orders that pursuant to section 42B(1) of the Administrative Appeals Tribunal Act1975, the application is dismissed.

............................[Sgd].......................................

Senior Member B J Illingworth

CATCHWORDS

PRACTICE AND PROCEDURE – CHILD CARE – family assistance law – education and care services national law – child care benefit – breach of conditions of provider approval – breach of Commonwealth or State laws – cancellation of Commonwealth provider approval under family assistance law – no jurisdiction to review cancellation of state approval – application for dismissal – s 42B(1) Administrative Appeals Tribunal Act 1975 – whether vexatious, misconceived, no reasonable prospects of success, lacking in substance or abuse of process – application dismissed.

LEGISLATION

A New Tax System (Family Assistance)(Administration) Act 1999, s 196(3), 200(1)(e)

Education and Care Services National Law Act 2010

Administrative Appeals Tribunal Act 1975, s 42B(1)

REASONS FOR DECISION

Senior Member B J Illingworth

18 December 2018

1. At the conclusion of the hearing of the above matter, the terms of the decision intended to be made and the reasons therefore were stated orally. After the giving of the oral reasons, the applicant, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested the Tribunal to furnish a statement in writing of the reasons of the Tribunal for its decision.

2. The oral reasons for decision have been transcribed by Epiq.  Some minor amendments and additions have been made to that transcript. Whereas those oral reasons, as amended, may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3. The said transcript is annexed hereunto and furnished to the applicant and to the respondent as it is the reasons for the Tribunal’s decision.

I certify that the preceding 3 (three) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

............................[Sgd].......................................

Associate

Dated: 18 December 2018

Date of hearing:	6 December 2018
Advocate for the Applicant:	Mr Awan Akuen Bol
Advocate for the Respondent:	Mr David Hertzberg assisted by Ms Sonia Harris

ORAL DECISION OF SENIOR MEMBER ILLINGWORTH  [2.01 pm]

1. SENIOR MEMBER:  This is an application by Alekdit Pty Ltd trading as Giggling Day Care Centre (“the applicant”), to review a decision of an authorised review officer (“ARO”) of the Department of Education and Training (“the respondent”) dated 22 February 2018, who affirmed the original decision dated 19 December 2017 to cancel the approval of the applicant under family assistance law for the receipt of Child Care Benefit allowance. 

2. The applicant was represented by Mr Awan Bol who is the director of the applicant company.  The respondent was represented by Mr Hertzberg of counsel and assisted by Ms Harris. 

3. The Tribunal has received into evidence the T documents and Supplementary T documents.[1]

   [1] Exhibits R1 & R2.

4. Prior to the hearing, the applicant also delivered to the Tribunal a large volume of documents and on the evening before the hearing a number of proposed statements of witnesses.  It was not apparent how it was said by the applicant that those materials were relevant to an issue to be decided by the Tribunal.

5. The applicant earlier filed on 11 May 2018 a summary of his application, together with various annexures.  Within that summary he referenced “extremely high discriminations and racisms carried out by some Australians’ Federal, States and Territories governments officials against migrants; particularly African-Australians’ communities.”  Further in that submission he references, amongst other things, intimidation, threat, conspiracy policy, misleading, prejudgments information, manoeuvring and unfair and unlawful acts against the development of African - Australian communities in Australia.

6. It was not apparent how the issues raised within that written submission and documents provided were relevant to any matter before the Tribunal.  It appeared that the issues may have been directed to allegations of misconduct by the Education Standards Board (“ESB”), or their officers who were responsible for the cancellation of the applicant's registration as a Day Care Centre.

7. The respondent's statement of facts issues and contentions summarised the State and Commonwealth legislative framework, and in particular that the State of South Australia operates as a licencing regime to permit a Day Care Centre, and relevantly here permit the applicant to conduct a child care business in Australia.  In South Australia, the administering body is the ESB, which employs delegates who exercise power under the Education and Care Services Nation Law as it applies in South Australia.

8. The Commonwealth approval regime is not responsible for the grant of licence, but is part of the criteria for a parent's eligibility for Commonwealth child care fee assistance.  As at the time of the internal review process, a condition of a payment of that assistance is that the Child Care Centre be registered, and pursuant to section 196(3) of A New Tax System (Family Assistance)(Administration) Act 1999 (“the Administration Act”), it must be compliant with all applicable requirements imposed by a law of the State in which the service operates.  Hence if a Child Care Centre's registration is cancelled, it ceases to comply with State law and it follows that they are no longer eligible for payment of Child Care Benefit from the Commonwealth and such payment will consequently be cancelled pursuant to section 200(1)(e) of the Administration Act.

9. On 24 November 2017, ESB decided to cancel the applicant’s registration,[2] and in particular under heading "External review option" the decision reads as follows:

   Pursuant to section 193 of the national law you may apply to the Administrative and Disciplinary Division of the District Court in writing for external review of the decision to cancel the provider approval for Alekdit Pty Ltd.

   It then provides the postal address and thereafter reads as follows:

   An application for external review must be lodged within 30 days after the day on which you are notified of the decision or become aware of the decision.

   [2] Exhibit R2, STD p 370.

10. The applicant did not apply for review of that decision.

11. On 19 December 2017, the respondent informed the applicant by letter of the decision to cancel the applicant's Commonwealth approval for child care fee assistance.[3]  Relevantly that decision says “you can apply to the Department for an internal review of my decision. The internal review will be carried out by an authorised review officer in the department who has not been involved in this decision. The application for internal review must be made no later than 28 days after you receive this notice.” It thereafter provides “if you are not satisfied with the internal review decision, you can apply to the Administrative Appeals Tribunal.”

    [3] Exhibit R1, T15, p 94-95. 

12. The applicant sought internal review of that decision before an ARO. On 22 February 2018, the ARO reviewed and affirmed that decision.

13. On 14 March 2018, the applicant sought review before the Tribunal.  It was not apparent on what basis the applicant said that the decision made by the ARO was incorrect. 

14. It would be helpful if the Tribunal here summarises some of the events leading up to the subject cancellation which is now purportedly before the Tribunal.  On 22 September 2014, the applicant was granted provider approval by ESB.[4]  On 1 April 2015, the service and Alekdit as the operator were approved by the respondent for the purposes of family assistance law effective from 30 March 2015, which enabled parents who sent their children to the operator’s service to receive Child Care Benefit and Child Care Rebate from that date.[5]

    [4] Exhibit R1, T12, p 84.

    [5] Exhibit R1, T4, p 32.

15. On 8 August 2016,[6] ESB refused the applicant's application for an increase in a number of educators from 30 to 90 due to non-compliance in managing 30 educators and ongoing monitoring obligations.  Between July and September 2017 the applicant applied to the ESB for approval for overnight care, and for monitoring and compliance processes, ESB arranged a number of visits to the coordination unit and educator’s homes between those dates.[7]  I will come back to those visits in a moment, but those visits identified what was said to be serious non-compliances, particularly in relation to health, safety and wellbeing of children being educated and cared for by the educators.

    [6]Exhibit R1, T7, p 60.

    [7] Exhibit R1, T7, p 60.

16. On 27 July 2017, ESB issued a notice suspending the applicant’s approval without show cause and with immediate effect, requiring a number of actions to be done.[8] That, therefore, was a suspension of their licence to operate.  It there referenced a number of serious breaches of national law and regulations.  Those breaches satisfied ESB that there was an immediate risk to the health, safety and wellbeing of a child or children being educated and cared for by the service, and that suspension was effective from 16 July 2017 to 10 August 2017.[9]

    [8] Exhibit R1, T8, pp 69 and following.

    [9] Exhibit R1, T7, p 44.

17. On that same date, 27 July 2017, the respondent served the applicant with a written notice to immediately suspend the Commonwealth approval of family assistance.[10] On 10 August 2017, ESB's suspension of that service approval ended,[11] but by an application of same date, 10 August 2017, the applicant commenced voluntary suspension of the service to take effect from 10 August 2017, with an end date of 24 August 2017 as proposed by the applicant.[12] There is no evidence before the Tribunal that suggests ESB accepted this proposed end date.

    [10] Exhibit R1, T8, pp 69 and following.

    [11] Exhibit R1, T7, p 44.

    [12] Exhibit R1, T7, pp 46 & 51.

18. On 24 August 2017, ESB conducted an unannounced monitoring visit and there identified a number of matters of non-compliance with national law, again in particular the protection of children from harm or hazard.[13]  At that time it was apparent that the applicant had not recommenced providing service.  On or about 7 September 2017, there were also further visits, and indeed ESB undertook unannounced visits at the applicant's place of business.

    [13] Exhibit R1, T7, p 61.

19. On 11 September 2017, ESB emailed the applicant in relation to findings of the monitoring visits conducted on 7 September 2017 which included the significant risks that children are currently exposed to, and other breaches of national law.[14]

    [14] Exhibit R1, T12, p 85 & T7, pp 55-57.

20. On 5 October 2017, ESB issued a notice of intention to cancel the provider approval[15] and there set out the grounds for non-compliance.  On 25 October 2017, the respondent issued a notice with reasons of intention to impose sanctions, in particular the cancellation of the Commonwealth approval for the grant of assistance.[16]  The grounds for the notice were non-compliance with the Administration Act, specifically sections 196(1) and 196(3).

    [15] Exhibit R1, T7, pp 59-68.

    [16] Exhibit R1, T11, pp 77-82.

21. On 10 November 2017, the applicant's submissions to the ESB in response to the notice of intention to cancel the provider approval alleged that they were fully compliant as at 10 November 2017.[17] On 22 November 2017, the applicant also made submissions to the respondent in response to the notice of intention to cancel the Child Care Benefit approval.[18]

    [17] Exhibit R1, T12 p 84.

    [18] Exhibit R1, T 12, p 83.

22. On 24 November 2017, a decision was made by ESB to cancel the service provider's approval,[19] and on 19 December 2017 the respondent made a decision with reasons to cancel the applicant's Commonwealth approval effective from 21 December 2017.[20]

    [19] Exhibit R2, STD p 370.

    [20] Exhibit R1, T15, p 94.

23. Hence it was apparent, that from the material before the Tribunal, the applicant had not pursued any challenge to the cancellation of its registration as a Day Care Centre.  Therefore at the commencement of the hearing the applicant was invited to open his case and identify the issues for the consideration of the Tribunal, together with the evidence and the witnesses he wished to call. 

24. It was immediately apparent that the applicant did not have a clear understanding of the legislative framework under which both State and Commonwealth bodies operate and the separate roles, responsibilities and functions of each.  Nor did he have an understanding of the different jurisdictions of the State and Commonwealth in appealing their respective decisions within the legislative framework. The Tribunal explained repeatedly the separate roles of each and their respective jurisdictions.

25. During those submissions Mr Hertzberg explained that the respondent had previously sought to clarify the separation of the jurisdictions with the applicant, and had sent to him the necessary paperwork to pursue an application in the District Court to review the decision to cancel Giggling Day Care Centre's registration, and advised the applicant that the respondent would not oppose an application for extension of time within which to bring the application, and indeed supports such an application for extension of time on the basis that the applicant had misunderstood the process and appealed in the wrong jurisdiction for the remedy he sought.

26. When asked by the Tribunal why the applicant had not accepted the invitation of the respondent, he said he did not want to proceed in the State courts and regarded the Commonwealth as responsible for the cancellation of Giggling Day Care Centre's registration.  He wanted the Commonwealth, and now the Tribunal, to decide the issue of the cancellation of the registration.  When asked if successful what orders the applicant was inviting the Tribunal to make, and he responded “reregistration of Giggling Day Care Centre's licence.”

27. It was clear that the applicant's application before the Tribunal was not directed to the decision of 19 December 2017 and the ARO’s decision of 22 February 2018 confirming cancellation of the child care assistance.  The application, it was plain, was directed to seeking orders reinstating Giggling Day Care Centre's registration which was not within the jurisdiction of the Tribunal.  The applicant maintained that the Commonwealth was responsible for the cancellation.  He would not pursue the issue before the State courts and he would pursue the matter by appeal before the Federal Court if unsuccessful.

28. Given the explanation by the applicant of the basis of the application, the respondent was heard on the matter further, and in particular, made application pursuant to section 42B of the Administrative Appeals Tribunal Act 1975 (“the Act”), that the application be dismissed. That application by the respondent was, in the view of the Tribunal, an appropriate application to make in the circumstances.

29. The respondent indicated that the respondent had made those responsible from ESB for the inspection of the applicant's places of work to give evidence and be cross-examined in these proceedings. But the question remained to what end.  The Tribunal was not prepared to have witnesses placed through the ordeal of giving evidence and be cross-examined about allegations of discrimination, racism and misconduct when those allegations had no bearing on whether the decision to cancel the Commonwealth approval under family assistance law in respect of Giggling Day Care Centre was the correct or preferable decision.

30. Indeed following further submissions from the applicant, he also raised complaint of the State and Commonwealth in their decisions to suspend registration of Giggling Day Care Centre and suspend approval of family care assistance respectively; neither of which had been the subject of an internal review process. In respect of the suspension of family care assistance, there had been no internal review by an ARO which was a precondition for such a matter coming before the Tribunal for consideration. 

31. At no time did the applicant raise, as an issue for the Tribunal, any relevant complaint or demonstrate any error by the respondent in the cancellation of family care assistance.

32. In those circumstances the Tribunal finds that the application is vexatious, wholly misconceived and lacking in substance and has no reasonable prospect of success, and is otherwise an abuse of the process of the Tribunal. 

33. The Tribunal orders, pursuant to section 42B(1) of the Act, that the application is dismissed.

    END OF ORAL DECISION  [2.27 pm]