Australian International College Pty Ltd and Australian Skills Quality Authority

Australian International College Pty Ltd and Australian Skills Quality Authority [2018] AATA 4753 (23 November 2018)
Division:GENERAL DIVISION
File Number(s): 2018/5294
Re:Australian International College Pty Ltd
APPLICANT

AndAustralian Skills Quality Authority
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:23 November 2018
Date of written reasons: 17 December 2018
Place:Sydney

(A) Pursuant to section 41(2) & (6) of the Administrative Appeals Tribunal Act 1975 (AAT Act), the Tribunal orders that:
1. the Cancellation Decision of the Respondent (Australian Skills Quality Authority) made under the National Vocational Education and Training Regulator Act 2011 (the NVR Act) and the Education Services for Overseas Students Act 2000 (the ESOS Act) (effective on 21 September 2018) continue to be stayed until such time as the Application for Review has been determined by the Administrative Appeals Tribunal, either after the final determination of the proceedings or by settlement between the parties subject to the following conditions:

(a)That no later than 7 days after the making of these orders, Australian International College Pty Ltd must file and serve evidence in affidavit form that it has a written agreement between itself and another registered provider (which must be a provider accepted as compliant with all obligations by the Australian Skills Quality Authority and not subject to any current regulatory action), which would operate in the event that Australian International College Pty Ltd was unable to provide courses to current or potential students not currently enrolled, such that such provider would provide appropriate courses to those potential students;
(b)That Australian Skills Quality Authority respond to the material provided by Australian International College Pty Ltd pursuant to Order 6 of the Tribunal’s Order made on 10 October 2018, viz: “prior to the Interim Hearing, the Applicant provide to ASQA documentary evidence of the support/arrangements it had put in place to accommodate its request to transfer AIC students to the proposed premises (212/38-52 College St, Darlinghurst, NSW 2010)”, and that it do so no later than Friday 7 December 2018;

(c)That the Australian Skills Quality Authority undertake to update PRISMS to reflect the updated documentation provided by Australian International College Pty Ltd, at the earliest date practicable;

(d)That Australian International College Pty Ltd not undertake any new enrolments in any courses on its VET scope until the Tribunal makes any further orders;

(e)That Australian International College Pty Ltd not create any new Confirmation of Enrolments for any new enrolments in any courses on its CRICOS scope until the Tribunal makes any further order; and

(f)That either party have liberty to apply.

(B) Pursuant to section 35(3) & (4) of the Administrative Appeals Tribunal Act 1975 (AAT Act), the Tribunal refuses the applicant’s confidentiality order application.
......................... ....[sgd]..........................................
Chris Puplick AM, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – application to stay decision of Australian Skills Quality Authority – decision to cancel Applicant's registration – consequences for applicant – financial viability – stay granted with conditions – application for confidentiality order – proceedings should be open and available to public – cancellation decision published on ASQA’s website – application for confidentiality order refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 35, 41
Education Services for Overseas Students Act 2000 (Cth)
National Vocational Education and Training Regulator Act 2011(Cth) s 2A
CASES
Australian Careers Institute Pty Ltd and Australian Skills Quality Authority [2016] AATA 730
Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 181 FCR 130
Poidevin and Australian Securities and Investments Commission [2018] AATA 124
Re Opus Capital Ltd and Australian Securities and Investments Commission (2010) 117 ALD 608
Smart City Vocational College Pty Ltd v Australian Skills Quality Authority [2017] FCA 198
SECONDARY MATERIALS
Australian Skills Quality Authority, ASQA decisions–table (22 November 2018) < REASONS FOR ORAL DECISION
Chris Puplick AM, Senior Member
2317 December 2018
BACKGROUND

Australian International College Pty Ltd (the Applicant) is a Registered Training Organisation (RTO) under the provisions of the National Vocational Education and Training Regulator Act 2011 (Cth) (the NVR Act) and the Education Services for Overseas Students Act 2000 (Cth) (the ESOS Act). It provides a variety of training courses for overseas students studying in Australia.
The NVR Act and the ESOS Act are administered by the Australian Skills Quality Authority (ASQA) (the Respondent).
On 17 August 2018 ASQA notified the Applicant that it had decided to cancel its registration under both the NVR and the ESOS Acts.
The reasons for that decision are not germane to these proceedings in the Tribunal and will be the subject for a subsequent hearing on the merits as the Applicant has lodged an appeal against them with this Tribunal dated 14 September 2018.
At the same time the Applicant applied for both a stay order in relation to the ASQA decision of 17 August 2018 and a confidentiality order to cover all proceedings.
There was subsequent correspondence between the parties which resulted in the Tribunal being notified (21 September 2018) that agreement had been reached on the basis that ASQA would not oppose the stay application provided that it was granted with certain terms and conditions attached.
However ASQA notified the Tribunal (28 September 2018) that it objected to the proposed confidentiality order being made.
This Tribunal issued an Interim Stay Order on 10 October 2018 with the agreement of the parties and at that stage assigned a pseudonym to the Applicant. Certain terms and conditions were attached to that Stay Order by agreement of the parties. Orders were made by the Tribunal and subsequently varied, so as to have further material before the Tribunal for a resumption of the stay and confidentiality applications on 23 November 2018.
ISSUES
In these proceedings there are two matters before the Tribunal: a request from the Applicant for a stay of the ASQA order under consideration and a request for a confidentiality order which would suppress the name of the Applicant and the name of any potential witnesses.
A supplementary matter related to the possible issuing of timetabling orders was also raised.
DISCUSSION
Stay order
From the outset ASQA indicated that it did not oppose the issuing of a stay order provided that certain terms and conditions were attached. These were initially reflected in the Tribunal’s Order of 10 October 2018.
At the hearing, ASQA relied initially upon a draft Order which it proposed in paragraph 68 of its Outline of Submissions dated 16 November 2018. The Applicant put forward an alternative set of proposed conditions. The Tribunal engaged in discussions with the parties as to their respective views of each other’s proposals. ASQA was prepared to consent to the broad outlines of the Applicant’s proposals with some clarifications but nevertheless continued to insist on the inclusion of a prohibition on the Applicant enrolling any new students or creating any new Confirmation of Enrolments.
This latter proposed condition was advanced on the basis that this was necessary for ASQA to discharge its responsibilities under section 2A of the NVR Act (set out below) which lists among the objectives of the Act the protection of students and the protection of the integrity of the national VET system.
The Applicant opposed the inclusion of this condition on the basis that it would be fatal to the financial viability of the Applicant. It presented evidence in support of this contention by way of a Second Statement from Dr Stephen Rainer (dated 20 November 2018) setting out a detailed financial analysis of the Applicant’s current and projected position.
ASQA challenged certain assertions in relation to this evidence and made the further point that, during the forthcoming year, were matters between the parties to be settled by some form of early conciliation, the Applicant would have time in the latter part of that year to make good any losses which might have been sustained initially.
It is not the role of the Tribunal, at this stage in proceedings to resolve these competing claims in detail but rather to note the contended points: ASQA’s assertion of its statutory obligations and the Applicant’s assertions regarding the potential impact of certain proposed conditions.
The Tribunal is of the opinion that ASQA is correct in pressing upon the Tribunal to need to have regard to the stated objectives of the NVR Act, and that, as a result, the Tribunal will impose conditions on further enrolments together with those modified terms and conditions suggested initially by the Applicant.
The final form of the Order is set out below.
Confidentiality Order
The second matter relates to a requested confidentiality order. This is contained in Section C of the Applicant’s original Stay Application and restated in its Amended Request for a Stay Order which was lodged on 21 November 2018.
Three grounds are advanced:
(a)Serious and irreparable harm to the applicant in terms of its national and international reputation;
(b)The possibility of “public alarm” arising from an inability of both enrolled or potential students and the public to understand fully the complexity of the issues in dispute;
(c)Adverse impact on students.
In deciding matters related to requests for confidentiality orders, the Tribunal starts with section 35 of the Administrative Appeals Tribunal Act 1975 (Cth) which provides as follows:
35 Public hearings and orders for private hearings, non-publication and non-disclosure
Public hearing
(1) Subject to this section, the hearing of a proceeding before the Tribunal must be in public.
Private hearing
(2) The Tribunal may, by order:
(a) direct that a hearing or part of a hearing is to take place in private; and
(b) give directions in relation to the persons who may be present.
(3) The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure of:
(a) information tending to reveal the identity of:
(i) a party to or witness in a proceeding before the Tribunal
(ii) any person related to or otherwise associated with any party to or witness in a proceeding before the Tribunal; or
(b) information otherwise concerning a person referred to in paragraph (a).
(4) The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure, including to some or all of the parties, of information that:
(a) relates to a proceeding; and
(b) is any of the following:
(i) information that comprises evidence or information about evidence;
(ii) information lodged with or otherwise given to the Tribunal.
(5) In considering whether to give directions under subsection (2), (3) or (4), the Tribunal is to take as the basis of its consideration the principle that it is desirable:
(a) that hearings of proceedings before the Tribunal should be held in public; and
(b) that evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public and to all the parties; and
(c) that the contents of documents lodged with the Tribunal should be made available to all the parties.
However (and without being required to seek the views of the parties), the Tribunal is to pay due regard to any reasons in favour of giving such a direction, including, for the purposes of subsection (3) or (4), the confidential nature (if applicable) of the information.
It can thus be seen that the entire thrust of the legislation is that the proceedings, evidence and determinations of the Tribunal should be open and available to the public unless there is a significant reason why this should not be the case. The onus lies upon any applicant for confidentiality or suppression orders to prove their case.
This principle was clearly enunciated by the Federal Court in Australian Securities and Investments Commission v Administrative Appeals Tribunal where it said:
“[74] Again, we think it is important to emphasise certain aspects of the statutory provisions. Although s 35(1) is subject to the balance of the section, it establishes a norm. The norm is that the proceedings before the AAT shall be in public. This norm is reinforced by the requirements of s 35(3) which expressly confirm the principle that it is desirable that hearings be held in public. It follows that when deciding whether it is satisfied that it is desirable to exercise its powers under s 35(2), the AAT is required to form a state of satisfaction which recognises the existence of the norm and the values it is intended to protect. This, no doubt, is why Brennan J in Re Pochi and Minister for Immigration and Ethnic Affairs described the power in s 35(2) to depart from this norm as one to be exercised “sparingly”. It also explains the approach in Australian Securities and Investments Commission v PTLZ emphasising that the words of s 35(3) require this principle of the desirability of hearings to be in public to be “the basis” of the AAT’s consideration of adopting a different approach (in contrast, for example, to “a basis” for that consideration).”[1]
[1] [2009] 181 FCR 130; 263 ALR 411, citations omitted, per Downes and Jagot JJ (with whom Moore J expressly agreed on this point). The sections of the Act have been renumbered since this decision.
This decision establishes the “norm” as one of openness and full disclosure, departures from which must be fully justified.
For example, in Re Opus Capital Ltd and Australian Securities and Investments Commission, Deputy President Hack granted a confidentiality order only after considering the unique aspects of that case and the impact which disclosure would have on parties other than those immediately involve in the litigation. He was at pains to describe the circumstances of that case as “very unusual”.
[23] ….the Tribunal shall take as the basis of its consideration the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public and that evidence given before the Tribunal and the contents of documents lodged with the Tribunal or received in evidence by the Tribunal should be made available to the public and to all the parties, but shall pay due regard to any reasons given to the Tribunal why the hearing should be held in private or why publication or disclosure of the evidence or the matter contained in the document should be prohibited or restricted.
[25] Accepting, as I do, that the terms of s 35(3) require the principle of the desirability of hearings to be in public to be the basis of any consideration of a different approach, there are, in any view, compelling reasons shown to depart from the norm.
[26] First, the debate is, as Opus submits, a technical one that concerns conflicting expert views about accounting treatment. There was, in the decision, no suggestion of any unfitness on the part of Opus to manage its funds or any criticism of the way in which it has done so in the past. But because the argument, at bottom, concerns “a measure of general financial standing” there is, I think, a real risk that the cancellation decision, and the evidence concerning it, would not be properly understood by the investor public and might be understood, quite wrongly, as reflecting upon the security of funds invested with Opus.
[27] And the case for preventing public access to material lodged in the tribunal is made all the more compelling by the references in the commission’s submissions to “serious concern … about the solvency of [Opus]”, “precarious financial situation”, “parlous financial position” and similar epithets. These issues formed no part of the decision and, so far as I am aware, are not supported by any evidence. Publication of material of such a nature could cause serious and irreparable damage to the reputation and standing of Opus and quite wrongly undermine investor confidence in Opus to the detriment of investors.
[28] Finally, it is again pertinent to note that the state of affairs complained of has existed for some 20 months without being in the public domain. Suppression of publication for a further short period until the hearing is warranted having regard to the very unusual circumstances of this case.[2]
[2] (2010) 117 ALD 608.
Unless those “very unusual” circumstances are present, it is the authority of the Tribunal not to grant confidentiality orders, as was explained by Senior Member Fice in Australian Careers Institute Pty Ltd and Australian Skills Quality Authority:
(18) In my opinion, the circumstances of this case are not analogous to the matter in the Opus case. There, the financial standing of Opus was likely to have been brought into question and may have infected a significant portion of the investment market. The confidentiality order in that case, while protecting Opus, had a much wider application. In this case, the only party to benefit from the confidentiality order would be ACI. In the scheme of things, it is my opinion that the orders made under s. 35 of the AAT Act were not designed for this purpose. As the Federal Court said in the ASIC case to which I have referred above, publicity may often disadvantage parties but that, by itself, is no reason to make such a confidentiality order. That risk is inherent in the nature of the decision made by ASQA to cancel the registration of the course in question. Current and prospective students have a right to be informed about such a decision.[3]
[3] [2016] AATA 730.
The rights of students, together with the right of the public, to access relevant information was clearly stated by Rangiah J in Smart City Vocational College in holding that once the fact of the applicant’s registration had been published, it was unlikely that any further information about the reasons for that decision could be the cause of further damage [4] and that:
“The public interest must also be considered. Students considering enrolling with the applicant would no doubt wish to know not only that the applicant’s registration has been cancelled, but why it has been cancelled.”[5]
[4] Smart City Vocational College Pty Ltd v Australian Skills Quality Authority [2017] FCA 198 at [9].
[5] Ibid at [10].
Only a few weeks ago this Tribunal again expressed its clear position when Deputy President Redfern ruled that:
[17] In summary, Tribunal proceedings should be conducted openly and in public unless there are ‘sufficiently cogent reasons’ why this should not be the case. Reputational damage will generally not be enough and it is for the applicant to satisfy the Tribunal that there should be a departure from the ‘norm’.[6]
[6] Poidevin and Australian Securities and Investments Commission [2018] AATA 124.
In the opinion of the Tribunal the Applicant has failed to show by way of evidence that it has established the “very unusual” circumstances which would warrant a departure from the norm of openness.
The decisions quoted above make it clear that mere reputational damage is not enough to establish a case for confidentiality and that in any event, students are entitled and have a right to be informed about decisions which have been made regarding their place of education. The Tribunal does not understand what is meant by the term “public alarm” in the context of the Applicant’s reasons and from the material before it sees no compelling reasons to give this assertion any weight.
The Applicant’s position is made more untenable by the fact that ASQA has already published details of its cancellation decision on its website and that information is now available to all current and potential students as well as to potential and current commercial rivals.

The ASQA website states that organisation’s policy in regard to its decisions in the following terms:
ASQA publishes information about certain regulatory decisions it makes, in order to:
·Assist students and potential students to make informed decisions about choosing a provider, and
·Provide industry, government and the public with accurate information on ASQA’s regulatory activity.
On 1 July 2016 ASQA changed the timing of the publication of its regulatory decisions to better meet the above objectives. ASQA now publishes information about decisions shortly after they are made (that is, before review periods available to the provider are exhausted). In making that change, ASQA also now publishes information about review processes that remain available, the status of decisions during any review process and their date of effect.[7]
[7] Australian Skills Quality Authority, ASQA decisions–table (22 November 2018) <http:// /decisions/decisions-table.>.
In other words, once ASQA makes a decision it publishes that decision to the world at large. On its website the decision to cancel the Applicant’s registration is shown as
·having been made on 8 August 2018
·its status as being “on hold” and with
·“AAT review ongoing”.
In the associated drop-box attached to the general Table publication, further details are given including the names of the Chief Executive and the Director, the provider number, the legal and trading names of the company and the following:
“The Commissioners decided to: i. cancel, under NVR Act s 36(2)(f) and s 39, the RTO’s registration with effect 35 calendar days after the RTO is given written notice of the decision.”[8]
[8] Ibid.
It seems to the Tribunal that any application for a confidentiality order in relation to the name of the organisation (especially as its legal name and trading name are identical save for the words “Pty Ltd”) would be utterly otiose. The information sought for anonymisation is already in the public domain. It would indeed be shutting the stable door after the horse had bolted.
Application For Timetabling Orders
The Applicant pressed upon the Tribunal that it should set some sort of formal timetable for matters to be heard both between the parties and by the Tribunal. The Tribunal was informed that some form of teleconference before a Conference Registrar was scheduled for 28 November 2018 apparently to canvass some of these issues.
ASQA indicated that, in the first instance, it was appreciative and supportive of the remedial steps taken to date by the Applicant, and that as a result it had some confidence that matters could be resolved between the parties without the need for the formal intervention and determination of the Tribunal. However it indicated that this process was unlikely to be completed before sometime in the middle of January 2019. Not unsurprisingly, the Applicant found this timetable unacceptable in terms of its own need for planning prior to the commencement of a new term in February 2019.
However in the light of the conditions which the Tribunal is imposing in relation to the Stay Order and with the Tribunal always preferring the resolution of disputes before matters come to a formal hearing, the Tribunal is persuaded to leave matters to the parties, at this stage, with a hope that outstanding issues can be resolved between them. It thus does not propose to make any timetabling orders.
DECISION
(A) Pursuant to section 41(2) & (6) of the Administrative Appeals Tribunal Act 1975 (AAT Act), the Tribunal orders that:
1. the Cancellation Decision of the Respondent (Australian Skills Quality Authority) made under the National Vocational Education and Training Regulator Act 2011 (the NVR Act) and the Education Services for Overseas Students Act 2000 (the ESOS Act) (effective on 21 September 2018) continue to be stayed until such time as the Application for Review has been determined by the Administrative Appeals Tribunal, either after the final determination of the proceedings or by settlement between the parties subject to the following conditions:
(a)That no later than 7 days after the making of these orders, Australian International College Pty Ltd must file and serve evidence in affidavit form that it has a written agreement between itself and another registered provider (which must be a provider accepted as compliant with all obligations by the Australian Skills Quality Authority and not subject to any current regulatory action), which would operate in the event that Australian International College Pty Ltd was unable to provide courses to current or potential students not currently enrolled, such that such provider would provide appropriate courses to those potential students;
(b)That Australian Skills Quality Authority respond to the material provided by Australian International College Pty Ltd pursuant to Order 6 of the Tribunal’s Order made on 10 October 2018, viz: “prior to the Interim Hearing, the Applicant provide to ASQA documentary evidence of the support/arrangements it had put in place to accommodate its request to transfer AIC students to the proposed premises (212/38-52 College St, Darlinghurst, NSW 2010), and that it do so no later than Friday 7 December 2018;
(c)That the Australian Skills Quality Authority undertake to update PRISMS to reflect the updated documentation provided by Australian International College Pty Ltd, at the earliest date practicable;
(d)That Australian International College Pty Ltd not undertake any new enrolments in any courses on its VET scope until the Tribunal makes any further orders;
(e)That Australian International College Pty Ltd not create any new Confirmation of Enrolments for any new enrolments in any courses on its CRICOS scope until the Tribunal makes any further order; and
(f)That either party have liberty to apply.
(B) Pursuant to section 35(3) & (4) of the Administrative Appeals Tribunal Act 1975 (AAT Act), the Tribunal refuses the applicant’s confidentiality order application.

I certify that the preceding 39 (thirty -nine) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

.............................[sgd]...........................................
Associate
Dated: 17 December 2018

Date(s) of hearing: 23 November 2018

Counsel for the Applicant: Mr J Mack

Solicitors for the Applicant: DC Balog and Associates

Solicitors for the Respondent: Ms L McDermott

[2018] AATA 4753

23 November 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Stay of Proceedings

Procedural Fairness

Remedies

Jurisdiction

Natural Justice

Date(s) of hearing:	23 November 2018
Counsel for the Applicant:	Mr J Mack
Solicitors for the Applicant:	DC Balog and Associates
Solicitors for the Respondent:	Ms L McDermott