Austwide Institute of Training Pty Ltd v Australian Skills Quality Authority

[2014] FCA 768

FEDERAL COURT OF AUSTRALIA

Austwide Institute of Training Pty Ltd v Australian Skills Quality Authority [2014] FCA 768

Citation:	Austwide Institute of Training Pty Ltd v Australian Skills Quality Authority [2014] FCA 768
Parties:	AUSTWIDE INSTITUTE OF TRAINING PTY LTD (ACN 118 002 216) v AUSTRALIAN SKILLS QUALITY AUTHORITY, SECRETARY TO THE DEPARTMENT OF EDUCATION and MINISTER FOR EDUCATION
File number:	VID 153 of 2014
Judge:	BEACH J
Date of judgment:	30 July 2014
Catchwords:	EDUCATION AND TRAINING ‒ provision of education and training services to overseas students ‒ registration of service provider ‒ renewal of registration ‒ scope of Education Services for Overseas Students Act 2000 (Cth), Parts 2 and 7 ‒ request for information ‒ unlawful request ‒ inspection of premises ‒ unlawful entry ‒ notice of intention to cancel registration ‒ injunctive and declaratory relief refused. ADMINISTRATIVE LAW ‒ conduct leading to a decision to cancel registration ‒ scope of Administrative Decisions (Judicial Review) Act 1977 (Cth) s 6(1)
Legislation:	Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 6 and 16 Education Services for Overseas Students Act2000 (Cth) ss 4A, 5, 7A, 8, 9AA, 9AB, 9AC, 9AH, 14A, 33‒34, 40, 43, 83, 93, 130, 157 and 170 National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 (Cth) Pt A, cll 4, 5 and 7, Pt C, cll 1‒6 and 11, Pt D National Vocational Education and Training Regulator Act 2011 (Cth) ss 66 and 72
Cases cited:	Clough v Leahy (1904) 2 CLR 139 Day v Commissioner, Australian Federal Police (2000) 101 FCR 66 McGuinness v Attorney‑General (Vic) (1940) 63 CLR 73 Project Blue Sky Pty Ltd v Australian Broadcasting Authority (1998) 194 CLR 355 Williams v Commonwealth (2012) 248 CLR 156 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
Date of hearing:	9 July 2014
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	77
Counsel for the Applicant:	Mr J Pizer QC
Solicitor for the Applicant:	Tania Mykyta Lawyers
Counsel for the Respondents:	Mr D Star
Solicitor for the Respondents:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 153 of 2014

BETWEEN:

AUSTWIDE INSTITUTE OF TRAINING PTY LTD
(ACN 118 002 216)
Applicant

AND:

AUSTRALIAN SKILLS QUALITY AUTHORITY
First Respondent

SECRETARY TO THE DEPARTMENT OF EDUCATION
Second Respondent

MINISTER FOR EDUCATION
Third Respondent

JUDGE:	BEACH J
DATE OF ORDER:	30 JULY 2014
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The Applicant’s Originating Application filed on 11 March 2014 be dismissed.

2.The Applicant pay the Respondents’ costs of and incidental to the Originating Application including all reserved costs.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 153 of 2014

BETWEEN:

AUSTWIDE INSTITUTE OF TRAINING PTY LTD
(ACN 118 002 216)
Applicant

AND:

AUSTRALIAN SKILLS QUALITY AUTHORITY
First Respondent

SECRETARY TO THE DEPARTMENT OF EDUCATION
Second Respondent

MINISTER FOR EDUCATION
Third Respondent

JUDGE:	BEACH J
DATE:	30 JULY 2014
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The Applicant, Austwide Institute of Training Pty Ltd (Austwide) is registered under the Education Services for Overseas Students Act 2000 (Cth) (ESOS Act) to provide education and training services to overseas students.

2. On 17 December 2013, the first respondent, Australian Skills Quality Authority (ASQA) gave notice under s 93 of the ESOS Act of an intention to make a decision to cancel Austwide’s registration under that Act (the Section 93 Notice).  ASQA can act in a number of capacities under the ESOS Act; under Pt 2, Div 3 it can act in its own right as a designated authority. Under Pt 6, including s 93, it can act and so acted as a delegate of the third respondent, the Minister for Education (see s 170(1)). Under Pt 7, it can act as a delegate of the second respondent, the Secretary to the Department of Education (see s 170(2)).

3. The Section 93 Notice relied in part upon information and documents obtained as a result of:

   (a)a written request made on 27 May 2013 (27 May request) for documents and information sent by Ms Kim Daly, a principal compliance auditor employed by ASQA, to Mr Zain Syed, chief executive officer of Austwide as part of Austwide’s application to renew its registration under the ESOS Act (renewal application);

   (b)the entry on 19 and 20 June 2013 by Ms Daly and Mr Jock Blackburn, then also a principal compliance auditor employed by ASQA, on to Factory 59, 91 Moreland Street Footscray, Victoria (Factory 59) and the entry on 20 June 2013 by Ms Daly and Mr Blackburn on to both Factory 59 and 156 Cowper Street, Footscray, Victoria (Cowper Street premises).

4. Austwide contends that the information and documents obtained from both the 27 May request and these entries were unlawfully obtained and that as a consequence the Section 93 Notice should be declared to be invalid and of no effect.

5. On 11 March 2014, Austwide commenced this proceeding under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) seeking an order for review under s 6(1) in respect of that conduct, being conduct engaged in for the purpose of making a decision concerning Austwide’s registration under the ESOS Act – the conduct in question being the making of the 27 May request, the entry on to Factory 59 and the Cowper Street premises and the issuing of the Section 93 Notice. Declaratory and injunctive relief have been sought under s 16(2) declaring such conduct to be unlawful and the Section 93 Notice invalid, and injunctions to restrain the further use of the information and documents obtained.

6. Was the 27 May request unlawful? The request was not made pursuant to any express statutory power.  Austwide accepted that ASQA had the common law “power” to ask Austwide to voluntarily provide it with documents as part of the renewal application.  But it contended that the 27 May request was coercive and that there was no statutory power to make such a coercive request.  In my view, the request was not coercive.  It was lawfully made and voluntarily responded to.  Documents and information provided by Austwide to ASQA in response to the 27 May request were lawfully obtained.

7. Were the entries on to Factory 59 and the Cowper Street premises unlawful? Austwide contended that any common law right of entry had been excluded by the terms and structure of the ESOS Act and that the Act had established “a comprehensive code for the entry on to premises under that Act” in the circumstances applying in the present case (see Pt 7). It was then said that Austwide had not complied with Pt 7 and in particular s 157(1). First, in my view, Pt 7 did not provide such a “comprehensive code”. Second, the entries here were made under Pt 2 rather than under Pt 7. Part 7 had no application to such entries. Third, even if the entries were made using both pathways, and assuming the Pt 7 pathway was not lawfully invoked, then the use of the Pt 2 pathway in any event entailed lawful entry. Fourth, even accepting Austwide’s argument that Pt 7 was the only pathway and even accepting that s 157(1) had not been complied with, that did not in any event result in the entries being unlawful. Documents and information provided by Austwide to ASQA as a consequence of such entries were lawfully obtained.

8. As none of the foundations for Austwide’s application under the ADJR Act are made out, its application must be dismissed.

   I:RELEVANT FACTUAL FINDINGS

   A:Background

9. Austwide trades as the “Automotive Institute of Training”. It is a registered training organisation in the business of providing training courses to domestic students and overseas students.  It has done so since July 2006.  Currently, it has approximately 500 domestic students and 290 overseas students.  It provides these courses principally at the Cowper Street premises.  The courses offered include training in the automotive industry, security operations, business, accounting, aged care and children services.

10. Austwide is registered, inter alia, under the Commonwealth frameworks of the National Vocational Education and Training Regulator Act 2011 (Cth) (the NVR Act) and the ESOS Act.  The NVR Act framework was established on 1 July 2011 to provide for the national regulation of vocational education and training (VET) courses. It was established partly as a consequence of and under a referral of powers by most States to the Commonwealth. It superseded many State based VET regulatory schemes and supplemented others. The framework regulates providers of VET courses to domestic students, including online VET courses, and providers of VET courses to overseas students. ASQA is the National VET Regulator under that framework (see s 155 of the NVR Act and reg 5 of the National Vocational Education and Training Regulator Regulations 2011). Separately, the ESOS Act framework was established from June 2001 to nationally regulate providers of education and training courses to overseas students; this framework superseded an earlier statutory scheme under the Education Services for Overseas Students (Registration of Providers and Financial Regulation ) Act 1991 (Cth).  Under the ESOS Act, ASQA acts in the various capacities that I have set out earlier.  Austwide is registered under both frameworks.

11. In terms of Austwide’s registration under the NVR Act, the background is as follows.  On 24 July 2006, Austwide was registered to provide VET courses to students under the then applicable Victorian regulatory regime.  On and after 1 July 2011 it became registered under the NVR Act as an NVR registered training organisation.  Its registration under the NVR Act is due to expire on 31 December 2016. 

12. In terms of its registration under the ESOS Act, on 3 March 2008 Austwide was first registered as an approved provider. As a consequence of such registration, Austwide was listed on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) in respect of particular courses. According to a recent extract from CRICOS, the registration appears to have been for the period 3 March 2008 to 14 February 2013, although it may originally have been for an indefinite term and then later converted to a fixed period at the time s 9AC was introduced on 1 July 2012; the precise detail is not relevant for present purposes. The parties accept that such registration has continued after 14 February 2013 and is still current, possibly by the operation of s 9AC of the ESOS Act, given that the renewal application had been lodged on 14 November 2012 but is still pending; the detail does not matter for present purposes, although I have some doubt that the condition in s 9AC(5)(b) has been satisfied.

13. On 14 November 2012, Austwide lodged its renewal application under Pt 2 of the ESOS Act seeking a renewal of its CRICOS registration.

14. The lodgement of this renewal application was a voluntary act by Austwide. By this renewal application, Austwide acknowledged that it was for it to demonstrate to ASQA and ultimately the relevant Secretary, inter alia, compliance with the ESOS Act, the Regulations made thereunder (the content of which are not relevant for present purposes) and the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 (Cth) (the National Code).  Austwide was also informed and acknowledged that the renewal application would be assessed in accordance with the ASQA risk assessment framework and that a site audit would be conducted to determine Austwide’s compliance with the standards for registered providers outlined in such legislation and instruments.  Austwide was also informed and acknowledged that a comprehensive range of evidence was required to be provided with the application.

15. Part of the renewal application also included a statutory declaration made by Zain Ulabidin Syed, the Chief Executive Officer of Austwide, in which he declared that he had read and understood the National Code, he understood that ASQA would audit his organisation to assess compliance with the standards for registered providers within the National Code, and he understood that ASQA might refuse the renewal application if Austwide failed to provide true and correct information of a material nature in the application.

16. The National Code also dealt with the renewal application in part.  Clause 6.1 of Pt C provided for the form and content of the information that was to be provided for “re‑registration”.  Clause 11.1 of Pt C also provided for the “registration approval process”, which embraced renewal, stating that the designated authority (in this case ASQA):

    …will conduct at least one inspection of the provider’s premises to ensure that the provider meets Standard 14 (Staff capability, education resources and premises). For this purpose, the provider’s premises include all locations where the provider operates as well as the locations of providers with whom the provider has an arrangement. When applicable, it may also include sites of work‑based training.

    Part D of the National Code also referred to the position that “compliance with the National Code by registered providers is assessed at the point of registration”; this may also embrace the point of renewal for a renewal application.  It also referred to compliance being assessed “during the period of registration”.

17. In summary, the submission of the renewal application was voluntary.  Moreover, in order for the renewal application to be properly assessed by ASQA, Austwide was told that certain information had to be provided and that a site audit to gather information may be required.  Austwide was also told that the non‑provision of information may result in the renewal being refused.  Mr Syed readily understood these matters.  I will discuss Mr Syed’s state of mind and his evidence when I come to address the specific arguments of Austwide.

    B:       The 27 May Request

18. On 23 May 2013, Kim Daly, the lead ASQA auditor telephoned Mr Syed to arrange a time and place to carry out an ESOS audit as part of the renewal application under the ESOS Act, and a VET audit under the NVR Act.  Ms Daly informed Mr Syed that in addition to an ESOS audit, she would also be carrying out a VET monitoring audit, the latter being to monitor Austwide’s compliance with the NVR Act and standards thereunder.  A decision was made by ASQA in January 2013 to use the context of the renewal application to also carry out a VET audit.  There is no separate formal concept of an “audit” under the ESOS Act.  However, there is such a formal concept under the NVR Act (see Pt 2, Div 3, Subdiv A). Ms Daly also informed Mr Syed that Mr Jock Blackburn would be accompanying her. Mr Syed gave evidence that he felt pressured to talk to her at this time, to answer her questions and to agree on specific dates. Nevertheless, the dates for the audits were ultimately agreed as 19, 20 and 21 June 2013.

19. On 27 May 2013, Ms Daly made the 27 May request by sending an email to Mr Syed, which also set out and confirmed the audit arrangements. In this regard:

    (a)The email confirmed that the audits would take place on 19, 20 and 21 June 2013 at the Cowper Street premises (certainly for the first day).

    (b)It also confirmed that the two audits would be conducted concurrently but result in two separate audit reports.

    (c)The email in part also said that:

    This audit is being conducted:

    1.In response to your organisation’s application for renewal of registration as a ESOS provider and to assess your organisation’s ongoing compliance with the ESOS Regulatory Framework; and

    2.To assess your organisation’s ongoing compliance with the VET Quality framework.

    Austwide sought to make something of the second part of point 1 in relation to its argument that ASQA was also engaged in an audit for a “monitoring purpose” under the ESOS Act.  I will return to this shortly.

    (d)The email also referred to complaints that had been received. It said:

    In addition, ASQA has received complaints about your organisation.  The complaints allege that your organisation is not fully compliant with the VET Quality Framework and the ESOS Regulatory Framework.  The scope of the audit will include the standards relevant to the subject of the complaints.

    Austwide also pointed to this as a demonstration that ASQA was also engaged in an audit for a “monitoring purpose” under the ESOS Act.

    (e)The email referred to Ms Daly being assisted by Mr Blackburn.  The evidence discloses that Ms Daly was the lead auditor for both the ESOS Audit and the VET Audit. But practically, Ms Daly was to and did carry out work solely for the VET Audit and Mr Blackburn was to and did carry out work solely for the ESOS Audit.

    (f)The email also sought documents of the following description:

    Evidence required prior to site audit

    Please provide the following evidence to [omitted] no later than COB Thursday 6 June 2013.

    For (1) your CRICOS renewal application (in the context of the qualifications listed as part of the sample for this audit), please provide copies of:

    1        Strategies for training and assessment for all qualifications.

    2Policy and procedure for signing off promotional material (Standard 1 of the National Code 2007).

    3Information provided to students prior to enrolment (Standard 2 of the National Code 2007).

    4Policy and procedures for assessing students’ qualifications, experience and English language proficiency (Standard 2 of the National Code 2007).

    5        Student written agreement (Standard 3 of the National Code 2007).

    6Refund Policy (if different from the version on Austwide’s website at [omitted]) (Standard 3 of the National Code 2007).

    7Current written agreement with an education agent (Standard 4 of the National Code 2007).

    8Evidence of any corrective action taken in relation to an education agent’s activities or where a contract with an education agent has been terminated (Standard 4 of the National Code 2007).

    9Critical Incident Policy is different from the version on Austwide’s website at [omitted] (Standard 6 of the National Code 2007).

    10Transfer policy and procedures if different from the version on Austwide’s website at [omitted] (Standard 7 of the National Code 2007).

    11Complaint handling and appeals policy and procedure if different from the version on Austwide’s website at [omitted] (Standard 8 of the National Code 2007).

    12Policies and procedures for monitoring the enrolment load of each student if different from the version on Austwide’s website at [omitted] (Standard 9 of the National Code 2007).

    13Policy and procedure for monitoring, recording and assessing course progress if different from the version on Austwide’s website at [omitted] (Standard 10 of the National Code 2007).

    14Policy and procedure for the granting and recording of course credit if different from the version on Austwide’s website at [omitted] and [omitted] (Standard 12 of the National Code 2007).

    15Policy and procedures for assessing, approving and recording a deferment of the commencement of study or suspension of study or cancellation of study if different from the version on Austwide’s website at [omitted] (Standard 13 of the National Code 2007).

    16Policy and procedure for notifying ASQA of prospective change to ownership and/or management (Standard 15 of the National Code 2007).

    17All proforma or template letters eg letter of offer, warning letters for non‑payment of fees, warning letters of unsatisfactory course progress, notice of intention to report etc.

    18       Orientation program.

    19       Staff handbooks and Induction training.

    20       Details of any arrangements with other providers.

    21Student Records Management Policy and Procedures (Section 21 of the ESOS Act and regulations 3.04 and 3.06 of the ESOS Regulations).

    22List of education agents that represent Austwide and promote their education services (Section 21A of the ESOS Act).

    23A copy of your current timetable, including details of the classes that will be in progress on the days of the audit, the trainer responsible for each class and the room allocated to each class.

    The documents sought were extensive. Further, many of them were not publicly accessible.  Although Austwide’s website was referred to, many of the categories sought documents “if different from the version on Austwide’s website”.  As is apparent from the description of the documents, most of what was sought was not publicly accessible, contrary to ASQA’s submission.

    (g)In terms of the language of this request, a few points should be made given Austwide’s submission that this request should be treated in the nature of some coercive demand.  First, the language “please provide the following evidence” and “please provide copies of” are consistent with the context in which, as a consequence of the renewal application, ASQA was requesting documents in order to address the renewal process voluntarily invoked by Austwide.  Further, the requested documents in email category (1) were expressly stated to be for “your CRICOS renewal application”.  The wording “Evidence required” in the heading to the request does not change that characterisation.  The word “required” does not impose anything coercive.  Nor could it reasonably be construed as such.   It is merely saying that ASQA, from its perspective, required the documents to properly carry out its appraisal of the renewal application.  Austwide was free to refuse the request.  Of course, to do so would have had practical consequences for whether the renewal would then have been granted.

    (h)Finally, the email attached an audit preparation information request and an audit verification form, the latter of which had acknowledgements to be given at the commencement of the audit(s) and at the completion of the audit(s).  The audit verification form made it plain that the reasons for audit(s) were twofold, namely, for the renewal of the CRICOS registration and for VET compliance monitoring.  No other reason was given. Within the form, however, reference was made to the “Audit Purpose” being to confirm compliance with the “ESOS Legislative Framework… and the National Code”.  The acknowledgement to be given by the CEO of Austwide at the commencement of the audit(s) included the words:

    Where necessary, I have sought clarification and I fully understand the audit process…

    Mr Syed gave a signed acknowledgement to this effect on 19 June 2013, albeit that he signed himself as Mr Shah.  Mr Syed also ticked the box:

    I acknowledge that it is my organisation’s responsibility to provide evidence of compliance and that it is not the responsibility of the audit team to locate evidence.

    This is consistent with the context of the renewal application, namely, that Austwide voluntarily invoked it.  Accordingly, if it wished to be successful, it had to provide necessary information in support.  Contrastingly, an investigative process carried out by an agency using the exercise of coercive statutory power has a different emphasis and context.  But that is not this case.

1. In response to the 27 May request, documents were provided by Austwide to ASQA.  Some of the information and documents sought were provided on 6 June 2013, with the balance subsequently provided at or prior to the 19 and 20 June 2013 inspections.

2. By no later than 31 May 2013, Austwide had engaged the legal services of Tania Mykyta Lawyers to advise in relation to the audits and the provision of information by Austwide to ASQA.  That firm’s employee solicitor, David Burton, sought to negotiate changes to the dates for the audits as well as to obtain further detail of the complaints referred to in the 27 May request.  Later, Mr Burton also attended for some of the time at the site audits on 19 and 20 June 2013.  At no stage during this time was complaint made about the nature and scope of the 27 May request.  Indeed, Mr Burton’s email to ASQA of 31 May 2013 in response to the 27 May request contained the statement: “Our client wishes to develop a good relationship with ASQA and its auditors…”, suggesting voluntariness and a willingness to cooperate on the part of Austwide.  Ms Daly in an email to Mr Burton on 6 June 2013 also made it clear that:

   It is up to the RTO to provide evidence of compliance with all the standards.  I cannot tell the RTO how they achieve compliance (or what evidence to provide); I can only review and report on the evidence provided to me.

   That email also referred to the complaints received and that as a consequence “the audit will include the relevant standards”.

3. The first time complaint was made challenging the power to make the 27 May request was on 26 February 2014 in a letter forwarded by Mr Burton to ASQA.  It will be recalled that this was after the Section 93 Notice had been issued (17 December 2013), and where that notice had made it plain that it was partly based upon the information and documents so provided (see [2.46], [2.49], [2.92], [2.100], [2.102]‒[2.105], [2.111]‒[2.112], [2.114], [2.118], [2.120], [2.135]‒[2.136], [2.139], [2.145], [2.149]‒[2.150], [2.153] and [2.154] of the Section 93 Notice).  One inference that could be drawn is that Austwide sat on its hands, waiting to see how the documents would be used, but in the interim seeking to cooperate for the purposes of achieving a favourable outcome.  The other inference is that Austwide’s current grounds of challenge did not occur to it until after the Section 93 Notice had been issued.  I was told by Austwide that the latter was the case and I proceed on that basis, although that does not mean to say that the challenge should not have been made earlier.  I will deal later with the delay and any consequences that may flow from that in terms of the exercise of my discretion to grant the relief sought, if Austwide’s grounds of challenge are otherwise made out.

4. Finally, it was common ground that the 27 May request was not a “production notice” under s 113 of the ESOS Act.

   C:       Entry on to Factory 59 and Cowper Street Premises

5. The 27 May request referred to site inspections on 19, 20 and 21 June 2013 at the Cowper Street premises.  The Cowper Street premises had been described in the renewal application as Austwide’s principal place of business.  It was the location where Austwide conducted its courses.  On any view, the Cowper Street premises were premises within either limb of s 130(1)(a) of the ESOS Act.

6. But on 6 June 2013, the location was changed to Factory 59 at least for the first day.  The precise circumstances under which this change occurred are unclear, but on 6 June 2013 Mr Syed sent an email to Ms Daly setting out the new location, describing the subject of the email as: “Our Conference Room is in Docklands Factory Address given below”, with the address for Factory 59 then set out.  On 7 June 2013, Ms Daly confirmed that she and Mr Blackburn would attend at Factory 59 at 9.00 am on 19 June 2013.  This was further confirmed by Ms Daly on 17 June 2013.

7. In relation to Factory 59, Austwide admitted that Factory 59 was a conference and meeting room hire facility not owned by it and that it had only hired part of Factory 59 on 19 and 20 June 2013 specifically for the purposes of the audits.  No part of it was occupied for the purposes of providing courses.  Moreover, prior to 19 June 2013, Factory 59 was not a premises where Austwide stored or held things, information or material.  Information and documents relevant to the audits were brought on to Factory 59 on 19 and 20 June 2013 for that purpose, but not otherwise.  There is a debate between the parties as to whether Factory 59 were premises under the second limb of s 130(1)(a), an issue to which I will return later.  They were not premises under the first limb.

8. On 19 June 2013 at about 9.00 am Ms Daly and Mr Blackburn attended Factory 59 to conduct both the ESOS audit and the VET audit of Austwide. Mr Syed and two other staff members of Austwide were present.  Mr Blackburn described the atmosphere as friendly and welcoming, a description with which Mr Syed agreed.  Mr Syed gave evidence that his state of mind, uncommunicated to Ms Daly and Mr Blackburn at the time, was that he believed he had no choice but to allow entry to Factory 59 and on the next day to the Cowper Street premises, and that if he had been informed that he could refuse to provide consent to entry, he would have refused to consent.  But on any view, he and ASQA voluntarily allowed entry to Factory 59 and the next day to the Cowper Street premises.  If the question of consent is looked at in terms of objective actions and behaviour in that context, rather than uncommunicated subjective states of mind held by Mr Syed, actual or indeed hypothetical, consent was given by Austwide to the entry to Factory 59 and later the Cowper Street premises by Ms Daly and Mr Blackburn.  Mr Syed at no stage requested that Ms Daly and Mr Blackburn leave either premises.  Mr Syed and Austwide also had the benefit of legal assistance from Mr Burton.  Mr Burton was present at Factory 59 on both 19 and 20 June 2013, although Mr Syed could only recall Mr Burton being present on one day.  Mr Burton at no stage requested that Ms Daly and Mr Blackburn leave Factory 59; Mr Burton may not have been present when Ms Daly and Mr Blackburn first entered Factory 59, but he was at Factory 59 at some stage on each day when Ms Daly and Mr Blackburn were also present. Further, neither Ms Daly nor Mr Blackburn at any stage said that consent to their entry onto either premises could not be refused.  But equally, neither Ms Daly nor Mr Blackburn expressly said that Austwide could refuse consent to entry to either premises.  But in my view, they had no legal obligation to make such a statement, an issue to which I will return.  On this question of consent, the argument of Austwide was that Ms Daly and Mr Blackburn had not complied with s 157(1) of the ESOS Act, rather than mounting a case that consent in substance had not been given. It was no part of its case to say that access had not been voluntarily given in substance. Rather, its case was that only strict compliance with Pt 7 and in particular s 157(1) could justify lawful entry.

9. On 19 June 2013, Ms Daly and Mr Blackburn attended only at Factory 59.  Ms Daly dealt with the VET audit.  Mr Blackburn dealt with the ESOS audit, and in that context the obtaining of information and documents relevant to the renewal application.  On that day a discussion ensued about the complaints referred to by Ms Daly in her 27 May request.  Mr Syed sought further detail of the complaints but this was not forthcoming.  Mr Blackburn gave evidence that these complaints were investigated by Ms Daly as part of the VET audit and not by himself as part of the ESOS audit.  He further gave evidence that the complaints were made by or on behalf of domestic students and that the complaints did not raise issues in relation to Austwide’s compliance with the ESOS Act or the National Code or if they did, he did not look at them as part of the ESOS audit.  I accept this evidence, notwithstanding the mild challenge to it.

10. The attendance at Factory 59 lasted until 4.30 pm.  During the day, information and documents were provided by Austwide to ASQA.  Around 4.30 pm, arrangements were then made to meet again the next morning at Factory 59.

11. On 20 June 2013, Ms Daly and Mr Blackburn again attended at Factory 59.  The morning was spent by them reviewing documents that had been provided.

12. After lunch on 20 June 2013, Ms Daly explained to Mr Syed that she needed to inspect the Cowper Street premises in order to be able to assess whether the training facilities and equipment at those premises complied with relevant standards under the NVR Act.  Around 2.30 pm, Ms Daly and Mr Blackburn attended the Cowper Street premises.  Ms Daly asked to see a sample of some student files.  According to Mr Blackburn, what was requested and sighted by Ms Daly at the Cowper Street premises was only relevant to domestic students and accordingly the VET audit.  More generally, MrBlackburn gave evidence that no information or documents considered for the purposes of the ESOS audit were obtained from Austwide during the inspection of the Cowper Street premises.  In cross‑examination, Austwide sought to challenge this, but I accept what Mr Blackburn said given that he was in the best position to explain what he did and there was no direct evidence to the contrary; Mr Syed’s evidence was non‑specific in terms of what he did and could observe in relation to the different roles played by the two auditors.  Ms Daly and Mr Blackburn were at the Cowper Street premises for about one hour, and then returned to Factory 59 around 3.30‑4.00 pm.  Little further information was then provided at Factory 59.  The audits were not, however, completed at this time.  The audits did not proceed on 21 June 2013 for reasons that are not presently relevant.  On 18 July 2013, ASQA sent a letter to Mr Syed regarding the continuation of the audits on 29 July and 30 July 2013.  An attempted site inspection was made of the Cowper Street premises on 29 July 2013, but this proved unsuccessful.  No further inspections were carried out.  The audits were never completed.

13. The information and documents obtained on 19 and 20 June 2013 from Factory 59 formed part of the basis for the Section 93 Notice (see [2.8], [2.54], [2.83], [2.98], [2.100],

    
    

    [2.102]‒[2.104], [2.109]‒[2.110], [2.112]‒[2.113], [2.116]‒[2.117], [2.119]‒[2.120], [2.122], [2.124], [2.126]‒[2.127], [2.145]‒[2.148], [2.150], [2.153] and [2.155]).  But as I have said, no information for the purposes of the ESOS audit was obtained from the Cowper Street premises.  Mr Syed said that he recalled that at the Cowper Street premises, the auditors received many student records.  That evidence is vague and is not inconsistent with the more specific evidence given by Mr Blackburn.  It is consistent with the evidence that such records were obtained by Ms Daly, but for the VET audit only.

    D:       Subsequent Events

14. Nothing of relevance occurred between August and December 2013 save that Austwide wrote to ASQA on 16 December 2013 expressing concern at ASQA’s delay in responding to the renewal application.  The next day the Section 93 Notice was issued by ASQA as the delegate of the third respondent, the Minister under s 170(1)(b) of the ESOS Act. The Section 93 Notice gave notice of an intention to make a decision under s 83 of the ESOS Act to cancel the registration of Austwide in respect of all courses at all locations the subject of its registration under the ESOS Act.  Subsequently, on 24 February 2014, Austwide submitted what Mr Syed described as “a large volume of material to ASQA in response to the ESOS Notice”.  But two days later on 26 February 2014, complaint was then made by Austwide as to the lawfulness of the 27 May request and the entries to Factory 59 and the Cowper Street premises.  This proceeding was then commenced on 11 March 2014.

    II:       RELEVANT PROVISIONS OF THE ESOS ACT

15. The provisions of the ESOS Act relevant to the present issues  are the following:

    (a)Section 4A sets out the principal objects in terms:

    4A  Objects

    The principal objects of this Act are:

    (a)to provide tuition assurance, and refunds, for overseas students for courses for which they have paid; and

    (b)to protect and enhance Australia’s reputation for quality education and training services; and

    (c)to complement Australia’s migration laws by ensuring providers collect and report information relevant to the administration of the law relating to student visas.

    (b)There are various definitions of relevance to the present case contained in s 5 including:

    “approved provider” for a course for a location means a provider approved by a relevant designated authority to provide that course at that location to overseas students, other than an approval that has been withdrawn by that authority.

    “authorised employee” means:

    (aa)if, under subsection 170(2), the Secretary delegates a power to TEQSA that TEQSA considers requires powers to be exercised under Part 7—a person who is an authorised officer (within the meaning of the TEQSA Act); or

    (a)if, under subsection 170(2), the Secretary delegates a power to the National VET Regulator which the Regulator considers requires powers to be exercised under Part 7—a person who is an authorised officer (within the meaning of the National Vocational Education and Training Regulator Act 2011); or

    (b)       a person who:

    (i)is authorised in writing by the Secretary to exercise powers under Part 7; and

    (ii)       is an employee in the Department; and

    (iii)holds the classification of APS 5 or higher, or an equivalent classification.

    “monitoring purpose” means a purpose of determining:

    (a)whether a registered provider is complying or has complied with the requirements of this Act or the national code; or

    (b)whether, because of financial difficulty or any other reason, the provider might not be able to:

    (i)        provide courses to its accepted students; or

    (ii)refund pre‑paid fees to its accepted students.

    “risk assessment” of a provider means an assessment of the risk of the provider being unable to satisfy the obligations of a provider under this Act.

    (c)Section 7A elaborates on the concept of “designated authority”. For present purposes, it means ASQA, which is the National VET Regulator.

    (d)Part 2 deals with the registration of approved providers. It is headed “Part 2‑Registration of approved providers”. Relevant provisions are the following:

    8  Offence: providing or promoting a course without a registered provider

    (1)A person is guilty of an offence if the person:

    (a)       provides a course at a location to an overseas student; or

    (b)makes an offer to an overseas student or an intending overseas student to provide a course at a location to that student; or

    (c)invites an overseas student or intending overseas student to undertake, or to apply to undertake, a course at a location; or

    (d)holds himself, herself or itself out as able or willing to provide a course at a location to overseas students;

    unless:

    (e)the person is registered to provide that particular course at that particular location; or

    (f)the person does so in accordance with an arrangement that the person has with a registered provider for that particular course for that particular location.

    Maximum penalty: Imprisonment for 2 years.

    9AA  Recommendation by designated authority that approved provider be registered to provide a course at a location

    (1)A designated authority may recommend that an approved provider for a course for a location be registered under this Act to provide that course at that location to overseas students.

    Risk management approach

    (2)A designated authority must use a risk management approach when considering whether to make such a recommendation.

    Recommendation may relate to new or existing registration

    (3)A designated authority may make such a recommendation:

    (a)for the purposes of the Secretary registering an approved provider under section 9AB; or

    (b)for the purposes of the Secretary adding one or more courses at one or more locations to a provider’s registration under section 9AG.

    9AB  Registration of approved providers by Secretary

    Registering approved providers

    (1)The Secretary must register an approved provider if:

    (a)a designated authority makes a recommendation under section 9AA in relation to the provider; and

    (b)       the provider is:

    (i)        a resident of Australia; or

    (ii)a Table C provider (within the meaning of the Higher Education Support Act 2003); and

    (c)the provider has paid the first entry to market charge (unless the provider is exempt from the requirement to do so under regulations made under subsection 6(4) of the Education Services for Overseas Students (Registration Charges) Act 1997); and

    (d)if the provider is not a registered provider—the provider has paid its first TPS levy (see Subdivision B of Division 2 of Part 5A); and

    (e)in any case—the designated authority has given the Secretary a certificate in accordance with section 9AH; and

    (f)the Secretary has no reason to believe that the provider:

    (i)is not complying, or will not comply, with this Act or the national code; or

    (ii)does not have the principal purpose of providing education; or

    (iii)does not have the clearly demonstrated capacity to provide education of a satisfactory standard; or

    (iv)is unlikely to be able to provide education of a satisfactory standard; and

    …

    (2)      The Secretary must not register the provider in any other circumstances.

    (3)Nothing in subsection (1) of this section creates a duty for the Secretary to seek any information about the matters mentioned.

    Registering courses and locations

    (4)At the time the Secretary registers an approved provider under this section, the Secretary must determine:

    (a)       the course or courses that the provider is registered to provide; and

    (b)the location or locations at which the provider is registered to provide that course or those courses.

    Renewing registrations

    (5)To avoid doubt, the Secretary registers a provider under this section if the Secretary renews the provider’s registration.

    9AC  Period of registration

    (1)At the time the Secretary registers an approved provider under section 9AB, the Secretary must determine that the provider is registered for a specified period that is:

    (a)       more than 2 years; but

    (b)       no more than 5 years.

    …

    When registration would otherwise expire before renewal completed

    (5)      If:

    (a)       a provider’s registration is due to expire; and

    (b)before that expiry, a designated authority makes a recommendation under section 9AA in relation to the provider; and

    (c)by the time the provider’s registration would otherwise expire, the Secretary has not yet made a decision whether to register the provider under section 9AB;

    the provider’s registration is taken to continue until the Secretary makes his or her decision.

    When registration expires before course completed

    (6)If a provider’s registration is due to expire before the provider has finished providing a course for which the provider is registered, the provider is taken to be registered to provide the course until the provider has finished providing the course to the students who were enrolled in that course before that registration was due to expire.

    9AH  Certificate from designated authority

    For the purposes of paragraphs 9AB(1)(e) and 9AG(1)(b), a designated authority who recommends under section 9AA that an approved provider be registered to provide a course at a location must give the Secretary a certificate, in the form approved by the Secretary for the purposes of this section, that:

    (a)       relates to the provider’s compliance with the national code; and

    (b)except in the case of a provider mentioned in subsection 9B(1)—states that the provider has satisfied the designated authority that the provider is fit and proper to be registered; and

    (c)in any case—states that the provider has the principal purpose of providing education; and

    (d)states that the provider has clearly demonstrated the capacity to provide education of a satisfactory standard (including by having an appropriate business model and access to adequate financial resources, for example); and

    (e)if applicable, states that the provider meets the ELICOS Standards; and

    (f)if applicable, states that the provider meets the Foundation Program Standards; and

    (g)states the results of the designated authority’s risk assessment of the provider; and

    (h)states the conditions (if any) that should apply to the provider’s registration for the course for the location, in view of the results of that risk assessment; and

    (i)if the certificate is for the purposes of paragraph 9AB(1)(e)—states the period (of no less than 2 years and no more than 5 years) for which the provider should be registered.

    14A  The Register

    (1)      The Secretary must cause a Register to be kept for the purposes of this Act.

    (2)The Register is called the Commonwealth Register of Institutions and Courses for Overseas Students.

    (3)The Secretary may cause the contents of all or part of the Register to be made available to the public by electronic or other means.

    Contents of the Register

    (4)The Secretary must cause the following information to be entered on the Register in relation to each provider’s registration:

    (a)       the name of each provider who is registered;

    (b)the name of each course which the provider is registered to provide, and each location at which the provider is registered to provide that course;

    …

    (g)the period of the provider’s registration;

    …

    (e)Part 4 deals with the National Code.  Relevant  provisions are the following:

    33  The national code

    (1)The Minister may make a national code by legislative instrument.

    (2)The code is to be called the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students.

    (3)The Minister must ensure as far as practicable that there is a national code in force at all times.

    34  Purpose of the national code

    The purpose of the national code is to provide nationally consistent standards for the conduct of registered providers and the conduct of persons who deliver educational services on behalf of registered providers.

    40  Legal effects of the national code

    The only legal effects of the national code are the effects that this Act expressly provides for.

    (f)Part 6 deals with enforcement. It is headed “Part 6‑Enforcement”. Relevant provisions include the following:

    83  Minister may impose sanctions for non‑compliance etc.

    Circumstances in which Minister may take action

    (1)The Minister may take one or more of the actions listed in subsection (3) against a registered provider if the Minister believes on reasonable grounds that the registered provider or an associate or high managerial agent of the registered provider is breaching, or has breached, this Act, the national code or a condition of the provider’s registration.

    Note:    Section 93 sets out the procedure for taking the action.

    …

    Actions the Minister may take

    (3)      The actions are:

    (a)to impose one or more conditions on the registered provider’s registration either generally or in respect of any one or more specified courses for any one or more specified locations (see section 86);

    (b)to suspend the registered provider’s registration for any one or more specified courses for any one or more specified locations (see section 95);

    (c)to cancel the registered provider’s registration for any one or more specified courses for any one or more specified locations.

    93  Procedure for taking action etc.

    Notice requirements before Minister makes decision

    (1)      Before making a decision:

    (aa)     to impose a condition under subsection 9AD(2); or

    (a)       to take action under Subdivision A of this Division; or

    (b)       not to give a notice under subsection 89(2) or 89A(2);

    the Minister must give the registered provider a written notice:

    (c)       stating that the Minister intends to make that decision and why; and
    (d)       giving the provider:

    (ia)      if subsection 9AD(2) applies—at least 72 hours; or

    (i)if Subdivision A applies and, in the Secretary’s opinion, the circumstances require urgent action—at least 24 hours; or

    (ii)       if Subdivision A otherwise applies—at least 72 hours; or

    (iii)      if subsection 89(2) or 89A(2) applies—at least 7 days;

    to give the Minister written submissions about the matter.

    Notice requirements before Secretary makes decision

    (1A)Before making a decision to impose a condition under subsection 9AE(1), the Secretary must give the registered provider a written notice that:

    (a)       states that the Secretary intends to make that decision and why; and

    (b)gives the registered provider at least 72 hours to give the Secretary written submissions about the matter.

    Consideration of submissions received and giving notice of decision

    (2)After considering any submission received within that period, if the Minister or Secretary still considers that he or she should make the decision, the Minister or Secretary may do so and must give the provider written notice of the decision.

    (g)Part 7 deals with the monitoring and searching of registered providers. It is headed “Part 7‑Monitoring and searching providers”. Section 111A contains what is described as a “Guide to this Part” and states, inter alia, that “Registered providers’ compliance with this Act and the national code is monitored under this Part”. Relevant provisions include the following:

    113  Production notices

    (1)This section applies if the Secretary reasonably believes that an individual specified in subsection (4) has, or has access to, information or documents that are relevant to a monitoring purpose.

    (2)The Secretary may give the individual a written notice requiring him or her to:

    (a)give any information or documents relevant to the monitoring purpose to an authorised employee; or

    (b)       show any such documents to an authorised employee; or

    (c)make copies of any such documents and give the copies to an authorised employee.

    …

    116  Attendance notices

    (1)This section applies if the Secretary reasonably believes that an individual specified in subsection (3) has, or has access to, information or documents that are relevant to a monitoring purpose.

    (2)The Secretary may give the individual written notice requiring the individual to attend before an authorised employee and answer questions about the matter.

    …

    120  Offence: failing to comply with a notice

    (1)A person who refuses or fails to comply with a production or attendance notice is guilty of an offence.

    Maximum penalty: Imprisonment for 6 months.

    …

    130  Authorised employee may enter premises for a monitoring purpose

    (1)      An authorised employee may for a monitoring purpose:

    (a)       enter any premises:

    (i)occupied by a registered provider for the purposes of providing courses; or

    (ii)at which it is reasonable to believe there might be a thing belonging to or possessed by the provider, or an activity conducted by or with the consent of the provider, that is relevant to a monitoring purpose; and

    (b)       exercise the monitoring powers set out in section 131.

    (2)An authorised employee is not authorised to enter premises under subsection (1) unless:

    (a)the occupier of the premises has consented to the entry and the employee has shown his or her identity card if requested by the occupier; or

    Note:    Section 157 sets out the requirements for obtaining the occupier’s consent.

    the entry is made under a monitoring warrant.

    (b)       the entry is made under a monitoring warrant.

    Note:    Monitoring warrants are issued under section 138 or subsection 165(2).

    131  Monitoring powers of authorised employees

    (1)For the purposes of this Division, the following are the monitoring powers that an authorised employee may exercise in relation to premises under section 130:

    (a)to search the premises, and any receptacle on the premises, for any thing on the premises belonging to or possessed by the provider that might be relevant to a monitoring purpose;

    (b)       to examine any such thing;

    (c)to examine any activity that is conducted on the premises by, or with the consent of, the provider that might be relevant to a monitoring purpose;

    (d)to take photographs or make video or audio recordings or sketches on the premises of any such activity or thing;

    (e)to inspect any document on the premises belonging to or possessed by the provider that might be relevant to a monitoring purpose;

    (f)       to take extracts from or make copies of any such document;

    (g)to take onto the premises any equipment and materials that the authorised employee requires for the purpose of exercising powers in relation to the premises;

    (h)to secure a thing, until a search warrant is obtained to seize it, being a thing:

    (i)that the employee finds during the exercise of monitoring powers on the premises; and

    (ii)that the employee believes on reasonable grounds is evidential material; and

    (iii)that the employee believes on reasonable grounds would be lost, destroyed or tampered with before the warrant can be obtained;

    (i)        the powers in subsections (2), (3) and (5).

    …

    137  Authorised employee may apply for a monitoring warrant

    (1)An authorised employee may apply to a magistrate or tribunal member for a monitoring warrant in relation to premises mentioned in subsection 130(1) (including premises in a State other than the magistrate’s or tribunal member’s State).

    (2)The employee must give the magistrate or tribunal member an information on oath or affirmation that sets out the grounds for seeking the warrant.

    138  Magistrate or tribunal member may issue a monitoring warrant

    The magistrate or tribunal member may issue a monitoring warrant if he or she is satisfied that it is reasonably necessary that one or more authorised employees have access to the premises mentioned in subsection 130(1) for a monitoring purpose.

    140  Contents of monitoring warrant

    (1)      A monitoring warrant must:

    (a)       authorise one or more authorised employees:

    (i)        to enter the premises; and

    (ii)to exercise the powers under section 131 in relation to the premises; and

    (b)state whether the entry is authorised at any time of the day or night or during specified hours of the day or night; and

    (c)state the day and time at which it ceases to have effect (which must be no later than 7 days after it is issued); and

    (d)       state the purpose for which the warrant is issued; and

    (e)       state that the warrant is issued under section 138.

    (2)      The authorised employees do not have to be named in the warrant.

    144  Magistrate or tribunal member may issue a search warrant

    The magistrate or tribunal member may issue a search warrant if he or she is satisfied that there are reasonable grounds for suspecting that there may be evidential material on the premises.

    156  Being on premises with consent

    (1)An authorised employee may enter premises under section 130 or 141 with the consent of the occupier of the premises at any reasonable time of the day or night.

    (2)However, the authorised employee must leave the premises if the occupier asks the employee to do so.

    157  Consent

    (1)Before obtaining the consent of a person for the purposes of paragraph 130(2)(a) or 141(3)(a), the authorised employee must inform the person that he or she may refuse consent.

    (2)An entry of an authorised employee with the consent of a person is not lawful unless the person voluntarily consents to the entry.

    Sections 130 and 157 have their mirror images in s 66 and s 72(1) and (2) of the NVR Act respectively.

    (h)Part 8 deals with miscellaneous provisions.  Relevantly, it contains the following delegation powers:

    170  Delegation

    Minister’s delegation

    (1)The Minister may, by signed writing, delegate any or all of the Minister’s powers under this Act to:

    (a)       the Secretary; or

    (aa)     TEQSA; or

    (b)       the National VET Regulator; or

    (c)       an SES employee or acting SES employee in the Department.

    Secretary’s delegation

    (2)The Secretary may, by signed writing, delegate any or all of the Secretary’s powers under this Act to:

    (aa)     TEQSA; or

    (a)       the National VET Regulator; or

    (b)       an SES employee or acting SES employee in the Department.

    …

1. The key provisions of the national code are Pt A, cll 4, 5 and 7, Pt C, cll 1‒6 and 11 and Pt D. It is unnecessary to set out their text, save for cl 11.1 of Pt C which is set out earlier (see [16]).

2. The Education Services for Overseas Students Regulations 2001 (Cth) contain nothing of relevance to the present issues.

3. Finally, one point should be made about the provisions of the ESOS Act before proceeding further.  Under Pt 2, there is no express reference to the concept of an audit, whether to a desktop audit or a field audit.  But under Pt 2, there is no provision thereof which is inconsistent with such a process.  If necessary, there is an implied statutory power to carry out such audits as a necessary incidence to the exercise of the express statutory functions and powers to deal with a renewal application.  To deny such a power, if necessary, would render the grant of such an express power ineffective.  Contrastingly, the NVR Act does make express reference to the concept of audits.  Under s 17(3), there is express reference to the National VET Regulator being empowered to carry out “an audit of any matter relating to the application”.  Under s 35, there is express reference to the National VET Regulator being empowered to conduct a compliance audit to assess whether the relevant organisation continues to comply with that Act or the VET quality framework.  But nothing turns on the difference between the inclusion of express statutory power to carry out audits under the NVR Act and the absence of express statutory power to carry out audits under the ESOS Act.  In any event, Austwide did not argue that the carrying out by ASQA of an audit under the ESOS Act was ultra vires.  Rather, its point was that any such audit and each element thereof had to conform with the provisions of the ESOS Act.  If ASQA needed any implied statutory power to carry out the type of audit process it engaged in, then in my view it had such power.  But did it even need any implied statutory power?  In my view it did not.  The audit process did not involve any element of coercion.  Moreover, one should not be seduced by the formality of the label “audit”.  If a voluntary process is invoked such as a renewal application, and information is requested, provided and reviewed, such a process may be described as a “desktop audit”.  If such a voluntary process also involves an inspection of relevant premises (see for example cl 11 of Pt C of the National Code), such an inspection may be described as a “field audit”.  Yet, in both cases, no coercive power is being engaged.  In such a scenario, no implied statutory power is required; I elaborate on the relevant authorities later in dealing with the 27 May request.  But if such a power is required, then it existed and was engaged.

   III:     THE STRUCTURE OF THE ESOS ACT

4. ASQA did not in its own right or as a delegate or through “authorised employees” invoke any Pt 7 process in relation either to the 27 May request or the entry on to the two premises. It invoked a process under Pt 2, in response to Austwide’s renewal application.

5. The processes under Pt 2 and Pt 7 are different.

6. Part 2 deals with the registration of approved providers and renewals thereof. Part 6 deals with the enforcement of compliance with the Act, the National Code and any conditions on a provider’s registration. Part 7 deals with the monitoring and searching of providers to assess compliance with the Act and the National Code. Part 7 refers to coercive instruments such as a production notice (s 113), a monitoring warrant (s 138) and a search warrant (s 144). Part 7 empowers authorised employees to require the production of, to search for and inspect, and to seize, relevant records of providers (see the Explanatory Memorandum to the Education Services for Overseas Students Bill 2000 (Cth) p 61). Authorised employees are conferred with extensive Pt 7 powers under ss 130‒133, 137, 140‒143, 146‒149, 151‒152, 156 and 164. An exercise of power under Pt 7 may precede an enforcement process under Pt 6, although an enforcement process under Pt 6 can proceed without any anterior exercise of power under Pt 7. The present case is an example of that latter scenario. The Section 93 Notice was issued without any prior exercise of coercive statutory power under Pt 7.

7. Generally, Pt 2 and Pt 7 deal with different subject matter. First, the Pt 2 process of registration or renewal of registration is invoked by the voluntary act of the applicant seeking registration or renewal. Contrastingly, any process under Pt 7 is first initiated by the Secretary or any delegate or any “authorised employee”. Second, Pt 2 does not contain coercive statutory powers. Contrastingly, most of the processes in Pt 7 have that characterisation. Third, ASQA’s roles under the different Parts differ. Under Pt 2, ASQA acts as a “designated authority” in its own right (see, for example, s 9AA and s 9AH). Under Pt 7, ASQA can only act as a delegate of the Secretary; an ASQA servant or agent may, separately, also be an “authorised employee”, but that just highlights the different capacities and roles ASQA and its staff may perform under the different Parts. Fourth, many of the statutory powers in Pt 7 may be exercised for a “monitoring purpose” (see for example, s 113 and s 130). I have set out the definition for “monitoring purpose”. Relevantly, it embraces a purpose of determining whether a registered provider is complying or has complied with the requirements of the ESOS Act or the National Code.  But Pt 2 has a different focus.  It looks at eligibility for registration or its renewal, although there may be some overlap with the concept of “monitoring purpose”.  When assessing a renewal application, prior compliance with the ESOS Act or National Code may be relevant, but Pt 2’s emphasis and perspective is different. 

8. Austwide contended that the consideration of a renewal application necessarily involves a “monitoring purpose” or at least did so in the present case. I disagree. Let me at this point just deal with that submission in its generality, namely that a renewal process under Pt 2 necessarily involves a “monitoring purpose”; I will deal later with the submission that ASQA was in fact acting for a “monitoring purpose” in this case. Section 9AB(5) makes it plain that for the purposes of an application for renewal, the same processes as for determining initial registration are followed, including the application of ss 9AA, 9AB and 9AH. Section 9AB(1)(f)(i) requires consideration of compliance with the ESOS Act and the National Code. Section 9AH(a) requires consideration of compliance with the National Code. Section 9AA(2) refers to the use of a risk management approach and s 9AH(g) refers to a “risk assessment” which is defined to mean “an assessment of the risk of the provider being unable to satisfy the obligations of a provider under this Act” (s 5). Now such exercises may involve, in the context of a renewal application, looking at whether a registered provider has complied with the requirements of the ESOS Act or the National Code. Moreover, past compliance or non‑compliance may inform the risk assessment task. But consideration of past performance does not entail that the consideration of a renewal application and the gathering of information for the purpose of a risk assessment in that context necessarily becomes a “monitoring purpose”. That latter concept is used in the Pt 7 context. The concept must be read in that context. Moreover, dovetailing with any “monitoring purpose” are “monitoring powers”. So, entry under s 130 for a “monitoring purpose” then permits the exercise of monitoring powers (s 131). The “monitoring purpose” and the monitoring powers together provide the context in which the concept “monitoring purpose” should be viewed; indeed s 130 appears in Div 3 headed “Monitoring warrants” and under Subdiv A headed “Monitoring powers”. And all of this is bestowed upon “authorised employees”, a concept not dealt with in Pt 2. It is not enough to say, as Austwide does, that because some substratum of activity engaged in under Pt 2 may overlap the definition of “monitoring purpose”, that the exercise under Pt 2 then embraces within it a Pt 7 context or exercise of power. That is not looking at the substance. Further, there is another dimension to the concept of monitoring. The word “monitoring” suggests a process that takes place outside the context of a registration process or the context of a renewal application, but takes place during the term of registration without any particular prompt. The Oxford English Dictionary provides one meaning for the verb “monitor” as “To observe, supervise or keep under review, to keep under observation; to measure or test at intervals, esp. for the purpose of regulation or control”. This more points to a process not performed in the context of considering a renewal application per se, but rather suggests something occurring within a registration period and whether or not the subject of a condition imposed on registration. That is consistent with how the ESOS Act in general and Pt 7 in particular use the concept.

9. Allied to what I have just discussed is Austwide’s codification argument to the effect that the Pt 7 procedures provided an exhaustive code for the circumstances under which entry to relevant premises is permitted where a “monitoring purpose” is involved. I address that codification argument in more detail later as well as whether ASQA was in fact acting for a “monitoring purpose”.

10. Let me turn then to the specific questions.

    IV:     WAS THE 27 MAY REQUEST “COERCIVE”?

11. Austwide submitted that the 27 May request was unlawful because, properly characterised, it was not a request to provide documents voluntarily but was a requirement that Austwide was compelled to meet.  It was said that the request was in fact “coercive”.

12. I disagree.  The request was not coercive.  It was not unlawful.

13. Before dealing with the request itself, there are several apparently uncontested propositions that should be stated.  ASQA had the common law power to request that Austwide provide the documents as part of the renewal application (Clough v Leahy (1904) 2 CLR 139 at 155‑157).  No statutory power seeking the voluntary provision of documents was required.  Second, express statutory power would have been necessary to compel Austwide to provide the documents (see , eg, McGuinness v Attorney‑General (Vic) (1940) 63 CLR 73 at 101-102, Day v Commissioner, Australian Federal Police (2000) 101 FCR 66 at [11] and Williams v Commonwealth (2012) 248 CLR 156 at [63]); there may be an unusual case where only implied statutory power is necessary where the implication is so inevitable notwithstanding the principle of legality, although I do not need to elaborate here. Third, no coercive statutory power had been used here. No “production notice” had been issued under s 113 of the ESOS Act.

14. In my view, there was nothing coercive about the request. 

15. First, the request was made as part of the voluntary process invoked by Austwide seeking a renewal of its registration.

16. The renewal application contained acknowledgements that Austwide was required to provide information in support of its application, that it was up to Austwide to demonstrate compliance, that an audit and inspections may be required, and that the application might be refused if insufficient information was provided. Mr Syed understood such matters. Any request for information by ASQA took place in that context. The Secretary was also under no duty to obtain information (see s 9AB(3)). Rather it was for Austwide to provide the information necessary. Section 9AB(3) reinforces the point that it is for the actual or potential provider to voluntarily submit the relevant information.

17. Second, the request, properly construed on its face, did not contain any coercive element.  I have set out earlier my reading of the request and how objectively it ought to be construed (see [19] above). That construction is also reinforced by the context in which the request was made as I have discussed.

18. Mr Syed may, understandably, have taken the request to have given him little or no choice but to comply and provide the information requested; he gave evidence to that effect.  If he did not provide the information, as he understood it, the renewal application was likely to be refused.  I accept that this was his state of mind.  Let it also be assumed that, objectively, this is what could be inferred from the request and its context.  This still does not make the request “coercive” in a relevant sense, although one can understand from the point of view of the recipient how practically it might have been considered that there was “no choice”.  But Austwide always had a choice to refuse to provide the information; nothing in the request stated otherwise.  Whether this was a palatable choice is a different question; it may not have been, given Austwide’s commercial interest to cooperate and to obtain renewal.  One must also recall that around this time, Austwide had the benefit of legal advice concerning the request and its compliance (see [21]).  Moreover, at all times, its desire understandably was to cooperate in order to maximise its chances of obtaining renewal.  The documents were provided under that apparent spirit of cooperation.  Indeed, no criticism was made or coercion element referred to by Austwide until 26 February 2014 (see [22]).  This was after the Section 93 Notice had been issued and after it had become apparent that many of the documents requested provided the factual substratum for some of the preliminary findings.  At least two inferences may be drawn from that delay.  One inference is that Austwide sat on its hands waiting to see whether it was successful in its renewal application.  The other inference is that Austwide was not aware of the “coercion” argument until around February 2014.  Counsel for Austwide stated that the latter was the case, and I am prepared to accept this.  However, this question of delay could have relevance to the exercise of my discretion to grant the relief sought if the asserted unlawfulness was otherwise made out. I will return to this later.  But the delay and the failure to object also have objective significance, even if it is accepted that Austwide was not specifically aware of the coercion argument at the earlier time.

19. ASQA submitted that the delay and the failure to object should be assessed as part of the objective matrix consistent with the position that Austwide, assessed from its objective behaviour, consented to provide the documents, rather than saw itself as being compelled.  I agree.  Such behaviour is more consistent with consent than not, in terms of Austwide’s objective behaviour.

20. In summary, the request was lawfully made.  First, it was not stated to be coercive.  It could have been ignored by Austwide.  Second, even if it was stated to be coercive, it could still have been ignored.  Third, the objective behaviour of Austwide at the relevant time demonstrates consent.  These findings are sufficient to dispose of Austwide’s case on this aspect.  How Austwide subjectively viewed the request, as to whether it thought it had no practical choice, does not change that objective characterisation.  But in any event, at best for Austwide, the evidence discloses that Austwide thought that it had no choice but to comply, because if it did not do so, its renewal application was likely to be refused.  So much may be accepted.  But that is short of saying that it had a belief that the ESOS Act mandated, on the pain of some statutory penalty, that the request had to be complied with.  Moreover, if it had such an erroneous belief, nothing that ASQA did or did not do induced it.  But in any event, the objective characterisation of the request, including its content and context, are sufficient to dispose of this ground of challenge against Austwide.

    V:       THE 19 AND 20 JUNE 2013 ENTRIES

21. Austwide contends that these entries were unlawful.  It says that the usual common law power to enter on to premises with the owner’s or occupier’s consent had been excluded by the provisions of the ESOS Act in relation to the entries in question.It says that the entry onto Factory 59 and the Cowper Street premises could only have been lawfully effected under Pt 7 in compliance with s 130 and s 157. I disagree.

22. There are certain matters which are common ground.  First, it was agreed that if, contrary to Austwide’s argument, the common law power of consensual entry was not necessarily or impliedly excluded by the ESOS Act in relation to the entries in question, then ASQA had validly exercised such a power of entry.  In other words, it was not argued by Austwide that it had not, by its conduct, consented in substance to such entry.  It did not deny factual consent and nor did it raise any argument concerning any alleged coercion to procure entry.  Second, it was agreed that the elements of s 130 and s 157 had not been followed in order to obtain entry.  ASQA’s position was that they were inapplicable, but agreed that if they were applicable they had not been followed.

23. Austwide’s principal argument was that s 130 and s 157 established “a comprehensive code” for the entry onto Factory 59 and the Cowper Street premises and that ASQA had not complied with these provisions.  I do not accept that s 130 and s 157 applied to ASQA’s entry in this case.  Nor do I accept Austwide’s “comprehensive code” argument.

24. First, as I have explained, s 130 and s 157 appear in Pt 7 which deals, generally, with the exercise of statutory power for the monitoring and searching of providers. But Pt 7 says little, if anything about the processes that might be engaged under Pt 2 in dealing with an application for registration or the renewal thereof. And it was Pt 2 that was engaged in the circumstances of the present case. There is no express statutory provision that provides that for any entry required in terms of a Pt 2 process, that the procedures under Pt 7 had to be followed. And nor could any such requirement been implied. As I have said, Pt 7 principally deals with the exercise of coercive power that may be initiated as part of any process thereunder, rather than any consensual or voluntary process that may have been engaged under Pt 2. Moreover, there is no good policy reason justifying why the structure of Pt 7 should be imported into Pt 2.

25. Second, there are more technical reasons as to why it is problematic to say that Pt 2 incorporates the Pt 7 procedure to the extent of saying that the “codified powers” of entry under Pt 7 exclude any common law power under Pt 2. A number of them can be listed:

    (a)Under Pt 2, it is ASQA as the designated authority in its own right that is performing various functions. Under s 130 and s 157, one has the different concepts of “authorised employees” and, generally under Pt 7, delegates of the Secretary. Of course, ASQA can be a delegate, although in that capacity it is acting in a different capacity to that of a designated authority. If Pt 7 gives rise to a “code”, it is for the Secretary, the Secretary’s delegates and “authorised employees”, rather than ASQA as a designated authority. What if access is requested by persons who are not authorised employees? Under Austwide’s codification argument, entry could not be obtained even on a consensual basis. Or does the codification argument become inapplicable? In my view the latter.

    (b)Section 130 only applies to a “monitoring purpose”.  What if a non‑monitoring purpose was engaged?  Does the codification argument entail that consensual entry could not be obtained?  Or does the codification argument become inapplicable?  In my view the latter.

    (c)Section 130 only applies to certain types of premises.  What if premises not covered by s 130 are sought to be entered consensually?  Does the codification argument entail that entry could not be obtained?  Or does the codification argument become inapplicable?  Again, in my view the latter.

    (d)Is the codification argument reduced to saying that if under Pt 2, in dealing with a renewal application, you have coincidentally a circumstance under which you have consensual entry requested by “authorised employees”, for a “monitoring purpose”, and in respect of premises all within the meaning of s 130, then you must treat the procedures under Pt 7 as an exclusive code to the exclusion of any common law power? But if that is what the argument reduces to, there is no support for it in the statutory language, context, structure or purpose of the ESOS Act.Moreover, it produces anomalies for entry under Pt 2 in other circumstances where you do not have authorised employees, a “monitoring purpose” or premises as contemplated by s 130.  Austwide contended that there would be no anomaly for non‑authorised employees; they would simply be barred.  But to me, this would still be anomalous.  But more generally, if Pt 2 could be used for consensual entry for scenarios outside the elements of s 130, there would seem to me to be nothing in the statutory language, context, structure or purpose of the ESOS Act that would entail incorporating the strictures of Pt 7 into Pt 2 where coincidentally, in a particular factual scenario, the conditions of s 130 such as “authorised employees”, “monitoring purpose” and “premises” may be said to be satisfied. Part 2 is a quite different process. No circumvention of the Pt 7 strictures would be involved. It is simply inapplicable.

    (e)There is nothing in the Explanatory Memorandum or the language of the ESOS Act that uses the language of “code” or “codification”.  And even if the ESOS Act used such language, that would not be conclusive of the question (cf subdiv AB, Div 3, Pt 2 of the Migration Act 1958 (Cth) considered in ReMinister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57). Moreover, if the language of “code” or “codification” had been used, why would its ambit extend beyond Pt 7? In other words, at best for any codification argument, it might apply to a Pt 7 process, but it would have nothing to say about a Pt 2 process.

1. Austwide contended that ASQA in acting under Pt 2 in dealing with the renewal application was, on the facts, also acting for a “monitoring purpose” of the type referred to under Pt 7. Therefore, to the extent that it was so acting in relation to the entry to the relevant premises, s 130 and s 157 applied. There are two issues to consider here. First, was ASQA in fact acting for a “monitoring purpose” of the type referred to under Pt 7, in respect of the entry? In my view, no. Second, if ASQA was so acting in respect of the entry and assuming Pt 7 applied and had not been followed, nevertheless could Pt 2 in any event have justified the entry? In my view, yes.

2. As to the first issue, Austwide contended that ASQA was not solely acting as a designated authority under Pt 2.  It asserted that ASQA acted under the ESOS Act for two purposes, viz, a registration renewal purpose and a “monitoring purpose” (s 130).  It was said that the “monitoring purpose” could be gleaned from the text of the 27 May request which referred to the ESOS audit as being, inter alia, “to assess Austwide’s ongoing compliance with the ESOS Regulatory Framework” and also reference to the fact that the “scope of the audit will include the standards relevant to the subject of the complaints”; Ms Daly’s email on 6 June 2013 to Mr Burton was also said to be consistent with this.  It appears that reference to the complaints in this context may have been an error, and that their investigation had more to do with the VET audit under the NVR Act. Austwide also sought to draw support from an extract printed from ASQA’s website headed “Assessment‑Renewal of CRICOS Registration” which referred to the ESOS audit examining ongoing compliance issues. Austwide contended that given that the ESOS audit involved assessing ongoing compliance with the regulatory framework, ASQA, and its employees, were acting for a “monitoring purpose”. And in so doing, ASQA was not merely acting as a designated authority under Pt 2, but was also acting as the Secretary’s delegate under Pt 7, and for a “monitoring purpose”.

3. In my view ASQA was not also acting for a “monitoring purpose” under Pt 7. It was not taking any relevant step as the Secretary’s delegate or through “authorised employees”. It was acting in its own right as the designated authority under Pt 2. First, the primary purpose for acting was enlivened by the renewal application. Second, the 23 May 2013 internal email referred to two audits, viz, “the combined ESOS renewal and VET monitoring audit”. No reference was made to any audit of complaints. Ms Daly’s file note of her conversation with Mr Syed on 23 May 2013 (incorrectly dated 26 May 2013) makes no reference to the audit of complaints as part of the ESOS process. Third, the 27 May request is equivocal in one sense on the complaints question and, according to Mr Blackburn, appears to be in error in suggesting that the complaints would be investigated as part of the ESOS audit; the reference in Ms Daly’s 6 June 2013 email can also be so treated. The 27 May request also stated that the ESOS audit would “assess your organisation’s ongoing compliance with the ESOS Regulatory Framework”, but in my view that did not demonstrate a “monitoring purpose” per se. Fourth, the audit verification form attached to the 27 May request ticks boxes other than post‑registration compliance monitoring for the ESOS Act in terms of the reasons for the ESOS audit.  Fifth, Ms Daly’s 17 June 2013 email refers to “your CRICOS Renewal and VET monitoring audit”.  It does not refer to any audit of the complaints.  Sixth, Mr Blackburn gave evidence that the complaints related to Austwide’s obligations under the NVR Act only and that on 19 and 20 June 2013, any inspection for the purposes of investigating the complaints was in that context only. Seventh, Mr Blackburn gave evidence that the ESOS audit was done pursuant to business rules, which were not in evidence, that required addressing compliance with s 21 and s 21A of the ESOS Act and various standards under the National Code, but such a limited assessment did not establish that a “monitoring purpose” was involved.  Finally, some of the other material in evidence suggests that as part of the audit there would be a review of the past or ongoing compliance with the regulatory regime, but I do not consider that establishes a “monitoring purpose” for the reasons given in [42] above.

4. In summary, and on the totality of evidence, ASQA, when it attended the premises on 19 and 20 June 2013, was not engaged in any “monitoring purpose”.

5. Moreover, there are other difficulties for Austwide’s “monitoring purpose” and codification argument.  One difficulty is that neither Ms Daly nor MrBlackburn were authorised employees within the meaning of s 130 when they entered Factory 59 or the Cowper Street premises. Part 7 was only engaged in respect of authorised employees. Moreover, the fact that they were not authorised employees points against any “monitoring purpose”.

6. The other difficulty is that Factory 59, certainly on 19 June 2013, does not appear to have been “premises” within the meaning of s 130. It was agreed that it did not fall within the first limb (s 130(1)(a)(i)). Further, on 19 June 2013 it does not appear to have fallen within the second limb (s 130(1)(a)(ii)). As ASQA submitted, it would seem that s 130 is not concerned with premises owned and occupied by a third party where no “thing belonging” to a provider is held, except those things brought onto the premises for the very purpose of meeting the auditors. This is not a situation of “a warehouse operated by a private storage company on which a provider stores relevant student records” (Explanatory Memorandum to the Education Services for Overseas Students Bill 2000 (Cth), cl 130). Having said that, strictly on 20 June 2013 it may have fallen within the second limb because of the material left there on the previous day. If Factory 59 was not “premises” of the type referred to in s 130, then Pt 7 was not engaged for such premises. However, in my view, they were such premises on 20 June 2013, so I will assume the “premises” condition in favour of Austwide.

7. In summary, I do not consider that ASQA or its employees were acting in part for a “monitoring purpose” under Pt 7. But even if they were, that is not to deny that ASQA’s substantial purpose and process was under Pt 2. As I have said, if the codification argument was good, it would only deal with the lawfulness of entry under Pt 7. It has nothing to say as to the lawfulness of entry under Pt 2, where s 130 and s 157 have no application. In other words, let it be assumed that ASQA was in a primary sense acting under Pt 2 and in a secondary sense acting under Pt 7 and that there were two routes to gaining lawful entry, one under Pt 2 and one under Pt 7. Further, let it be assumed that the Pt 7 route had not been lawfully invoked. That still did not deny to ASQA the lawful route under Pt 2 for its entries on to Factory 59 and the Cowper Street premises. The second issue set out at [60] must also be resolved against Austwide.

8. But there is another problem with Austwide’s argument. Let it be assumed that ASQA on the facts of this case could only get lawful entry through the Pt 7 pathway. Nevertheless, in order for Austwide to succeed, it needs to show that any non‑compliance with s 157(1) necessarily invalidates or makes unlawful the entry. I do not agree with that consequence, even if the premise for the argument was established, which it is not.

   VI:     CONSEQUENCES OF NON‑COMPLIANCE WITH SECTION 157

9. Austwide made a number of submissions concerning s 157.  First, it said that if an authorised employee did not inform as required under s 157(1), then there was no consent as that term is used in s 157.  Second, it followed that if there was no consent, then there was no voluntary consent for the purposes of s 157(2).  Third, it followed from the text of s 157(2) that the entry was not lawful.  In substance, and flowing from this chain of reasoning, it was submitted that s 157(2) specifically provided for the unlawfulness of entry where the authorised employee had not so informed as required by s 157(1).

10. ASQA put a different construction.  First, it asserted that s 157(1) did not state what the consequences were for a failure to so inform.  Unlike s 157(2), which it said was dealing with a different scenario, s 157(1) did not prescribe unlawfulness or invalidity of entry flowing from a failure to inform.  The contrasting language between the two subsections demonstrated that as a matter of construction, unlawfulness or invalidity of entry could not be taken to be the ascertained legislative purpose flowing from non-compliance with s 157(1).  As for s 157(2), ASQA submitted that that provision was dealing with consent and voluntariness in its ordinary sense – so, there might be a lack of voluntary consent where there was fraud or duress.  But it was not addressing the situation where in substance, and in ordinary parlance, there had been voluntary consent, but an authorised employee had simply failed to so inform under s 157(1).

11. The Explanatory Memorandum to the Education Services for Overseas Students Bill 2000 (Cth), cl 157, does not assist to resolve these questions.

12. I prefer ASQA’s construction.  First, it is consistent with the structure of s 157.  Second, the consequences of unlawfulness readily flow from a lack of voluntary consent in substance.  But it is not clear why I would take the legislative purpose to provide for this consequence where s 157(1) had not been strictly complied with (see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [93] per McHugh, Gummow, Kirby and Hayne JJ). What if the occupier well knew of its rights or was insouciant and would have permitted entry anyway, even where s 157(1) had not been complied with? Why would unlawfulness or invalidity of entry follow, which they would on Austwide’s construction? One can understand why they would follow where, in substance, there was a lack of voluntary consent. But otherwise? Third, the first step in Austwide’s chain of reasoning in order to enliven s 157(2) is that a consent obtained without the informing required by s 157(1) is not a consent or voluntary consent. That is an artificial reading. Moreover, if that step fails, then there is no linkage to s 157(2) on Austwide’s argument. In that scenario, unlawfulness or invalidity of entry is then not specified as flowing from non‑compliance with s 157(1); and in that scenario I would not glean that to be the legislative purpose, particularly where the legislature had chosen to say so for s 157(2), but not for s 157(1).

13. On the view I take of the other issues, I do not strictly need to resolve these questions. If only Pt 2 was triggered for the entries, the s 157 issue does not need to be resolved. The issue does not arise. If both Pt 2 and Pt 7 were triggered to potentially support entry, but the Pt 2 entry was valid, then again the s 157 issue does not need to be resolved. Further,` if only Pt 7 could be triggered, but it was not a code, then again the s 157 issue does not need to be resolved. Finally, the only scenario where the s 157 issue is live is the circumstance where only Pt 7 could be triggered and compliance with s 157(1) was part of the code for entry. But in that scenario, I prefer ASQA’s construction of s 157. Unlawfulness of the entries and invalidity of any administrative step consequent upon the information derived from the entries does not follow from a failure to satisfy s 157(1) as a matter of ascertained legislative purpose.

    VII:     SUMMARY

14. In summary, Austwide has not made out any of its grounds under s 6(1) of the ADJR Act.

15. Further, in relation to the first and separate ground dealing with the 27 May request, as distinct from the ground dealing with the Section 93 Notice which is based in part on the information provided under the 27 May request, there is also a doubt as to which element of s 6(1) of the ADJR Act the relevant conduct would fall under. The only element of s 6(1) that may resonate is s 6(1)(b), but query whether even that is apposite; s 6(1)(f) would only be an artificial fit; s 6(1)(e) and (j) would be too remote. And apart from reliance upon s 6(1), no other cause of action is alleged in relation to the 27 May request. As I have concluded that the 27 May request was validly made, I do not need to pursue this further. In relation to the other grounds dealing with the entry to Factory 59 and the Cowper Street premises and the Section 93 Notice itself, there is no similar difficulty in fitting the grounds, if otherwise made out, into s 6(1). But in any event, this is all hypothetical. Austwide has not made out any of its grounds.

16. Further, if it had made out any of its grounds, an issue would then have arisen as to whether in the exercise of my discretion I should grant any of the relief sought.  Issues relevant to the exercise of that discretion would be the question of delay and also the extent to which the Section 93 Notice would be invalid in whole or in part.  No convincing reason was given by ASQA as to why any delay should be a discretionary bar.  Further, no argument of estoppel or waiver was advanced, assuming that it could operate against the operation of the ESOS Act in any event.  It was not said by ASQA that any estoppel or waiver arose by reason of the delay prior to the issuing of the Section 93 Notice or that any estoppel or waiver arose subsequent to that issuing by reason of Austwide providing substantial information in response thereto on 24 February 2014.  Moreover, if any of the grounds had been made out, it would not have been feasible to apply any blue pencil or severance approach to the Notice; I note that the Notice did not rely upon any information obtained from the Cowper Street inspection, but there was still the other information said to be unlawfully obtained.  Accordingly, if any of the grounds had been made out, there would have been no discretionary bar to granting most of the relief sought.

17. Finally, another potential issue relevant to my discretion might have involved the consideration of whether the information, if lawfully obtained in any event under the NVR Act, could have been “handed over” and used under the ESOS Act, even if no separate legitimate pathway had been used under the ESOS Act, thereby providing an independent valid derivation for the information forming the basis for the Section 93 Notice.  It was not in contest that the information obtained by ASQA from the inspections at Factory 59 and the Cowper Street premises, in its capacity as the National VET Regulator, could lawfully be used under the NVR Act for the proper purposes of that Act.  But could ASQA, in one capacity under the NVR Act, have “disclosed” such information to ASQA in its separate capacity under the ESOS Act? Section 205(1) of the NVR Act gives rise to that possibility, but the definition of “Commonwealth authority” as referred to in s 205(1)(b) and “another VET Regulator” as referred to in s 205(1)(e) would not encompass ASQA in its separate capacity. Of course, if it had, those parts of the Section 93 Notice relying upon such information may have had an independent valid derivation. The parties have not troubled themselves with this issue and I will not further.

18. No ground of challenge has been made out.  Austwide’s application will be dismissed. 

I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beach.

Associate:

Dated:       30 July 2014