Barque Institute Pty ltd and Tertiary Education Quality and Standards Agency - [2018] AATA 314

Barque Institute Pty ltd and Tertiary Education Quality and Standards Agency [2018] AATA 314 (8 February 2018)
Division:GENERAL DIVISION
File Numbers: 2017/7375
Re:Barque Institute Pty ltd
APPLICANT

Tertiary Education Quality and Standards AgencyAnd
RESPONDENT

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:8 February 2018
Date of written reasons: 19 February 2018
Place:Sydney

The Tribunal is satisfied that it does have jurisdiction to consider the application for review filed on 13 December 2017.
............................[sgd]............................................
Mrs J C Kelly, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – jurisdiction – whether Tribunal has jurisdiction to consider application for review – longer period determination made by TEQSA – whether TEQSA’s decision to extend the period was valid – strict compliance with notification period provisions - jurisdiction found
LEGISLATION
Tertiary Education Quality and Standards Agency Act 2011 (Cth), ss 4, 21, 49, 183
CASES
Commissioner of the Australian Federal Police v Oke [2007] FCAFC 94
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
19 February 2018
Written reasons for oral decision

On 8 February 2018, the reasons for the interlocutory decision made were given orally. Shortly after the hearing, the Tribunal served both parties with a copy of the order setting out the decision that was made. Prior to the oral decision, the Applicant requested the Tribunal provide written reasons for its decision pursuant to s 43(2A) of the Administrative Appeals Tribunal Act 1975 (Cth). The written reasons are set out below.
The question for determination
The question for the Tribunal to decide in this case is whether it has jurisdiction to consider applications made by Barque Institute Pty Ltd (Barque) to review two default ‘decisions’ made by the Tertiary Education Quality and Standards Agency (the Agency) on 16 November 2017 to reject two applications made pursuant to the Tertiary Education Quality and Standards Agency Act 2011 (the TEQSA Act). Relevantly, the Agency registers higher education providers and accredits courses of study offered by those providers: s 4 of the TEQSA Act. The decisions specified in the application to the Tribunal were to reject Barque’s applications:
(a)for registration under s 21(7), the TEQSA Act (the registration decision); and
(b)the accreditation of four courses of study pursuant to s 49(7) of the TEQSA Act, the (accreditation decision).
The legislation
It is not disputed that the Tribunal’s jurisdiction to review decisions under the TEQSA Act arises pursuant to s 25 of the Administrative Appeals Tribunal Act 1975 (Cth) and ss 183 and 187 of the TEQSA Act. Section 183 of the TEQSA Act lists decisions made under that Act that may be reviewed by the Tribunal. They include decisions pursuant to s 21 to reject an application for registration, and s 49 to reject an application for accreditation; s2 21(3) and 49(3) to extend the time within which TEQSA may decide an application for registration or accreditation respectively. Following the relevant provisions of the TEQSA Act, critical words are in bold type.
Section 21 – Registration
Grant of application for registration
(1)TEQSA may grant the application for registration if TEQSA is satisfied that:
(a) the applicant meets the Threshold Standards; and
(b) the applicant, and each person who makes or participates in making decisions that affect the whole, or a substantial part, of the applicant's affairs, is a fit and proper person.
Decision on application
(2)TEQSA must make a decision on the application:
(a)within 9 months of receiving it; or
(b)if a longer period is determined by TEQSA under subsection (3)--within that period.
For the purposes of paragraph (a), TEQSA is taken to receive the application when it receives payment of the substantive assessment application fee.
Longer period for decision on application
If TEQSA is satisfied that, for reasons beyond its control, a decision on the application cannot be made within the period mentioned in paragraph (2)(a), TEQSA may determine a longer period, not exceeding a further 9 months , within which it must make a decision on the application.
If TEQSA determines a longer period, it must do so not later than 6 weeks before the end of the period mentioned in paragraph (2)(a).
If TEQSA determines a longer period, TEQSA must, within 7 days of making the determination:
(a)notify the applicant, in writing, of the determination; and
(b)give, in writing, the reasons for the determination.
Period of registration
If TEQSA grants the applicant's application, TEQSA must also determine the period for which the applicant is registered. The period must not exceed 7 years.
…
Decision not made
TEQSA is taken to have rejected the application if a decision is not made within the period applicable under subsection (2).
Section 49 - Accreditation of course of study
Grant of application for accreditation
(1)(Following an application for a course of study to be accredited, TEQSA may accredit the course of study in relation to the applicant if TEQSA is satisfied that:
(a) the applicant is a registered higher education provider; and
(b) the course of study meets the Provider Course Accreditation Standards.
Decision on application
TEQSA must make a decision on the application:
(a) within 9 months of receiving it; or
(b) if a longer period is determined by TEQSA under subsection (3)-- within that period.
For the purposes of paragraph (a), TEQSA is taken to receive the application when it receives payment of the substantive assessment application fee.
Longer period for decision on application
If TEQSA is satisfied that, for reasons beyond its control, a decision on the application cannot be made within the period mentioned in paragraph (2)(a), TEQSA may determine a longer period, not exceeding a further 9 months , within which it must make a decision on the application.
If TEQSA determines a longer period, it must do so not later than 6 weeks before the end of the period mentioned in paragraph (2)(a).
If TEQSA determines a longer period, TEQSA must, within 7 days of making the determination:
(a) notify the applicant, in writing, of the determination; and
(b) give, in writing, the reasons for the determination.
Period of accreditation
If TEQSA accredits a course of study in relation to a registered higher education provider, TEQSA must also determine the period for which the course of study is accredited. The period must not exceed 7 years, but need not be for the same period for which the provider is registered.
…
Decision not made
TEQSA is taken to have rejected the application if a decision is not made within the period applicable under subsection (2).
The material before the Tribunal
Barque provided a folder of material in support of its application. The material included written submissions and what was described as evidence comprising 584 pages, TEQSA’S annual reports for 2015/2016 and 2016/2017, and the TEQSA Act
Barque had previously provided to the Tribunal a covering letter for the application, dated 12 December 2017 and filed on 13 December 2017, which included submissions, a chronology and 11 annexed documents, most of which were email communications between Barque and the Agency.
The Agency provided written submissions and an affidavit of Mr Gary Francis Brook dated 15 January 2018, which included eight annexures.
The Agency’s contentions
The Agency contends:
(a)Barque has not validly applied to the agency for accreditation of three of the four courses described in Barque’s application of the Tribunal. Barque’s only valid applications to the Agency are for registration and for accreditation of one course, a Masters of Business Administration Advanced Course.
(b)On 28 September 2017, the Agency made decisions pursuant to ss 21(3) and 49(3) of the TEQSA Act extending the date by which a decision was required to be made in respect of each of the applications, until 30 April 2018.
(c)The Agency has not made decisions pursuant to the TEQSA Act in relation to the registration, s 21(7), or in relation to accreditation of s 49(7). Therefore, Barque is not seeking a review of any decision which falls within the Tribunal’s jurisdiction.
(d)The Tribunal does have jurisdiction to review decisions to extend the date by which a decision was required to be made in respect of both registration and accreditation but those decisions are not the subject of the present application to the Tribunal.
Barque’s contentions
Barque contends that it has validly applied to the Agency for accreditation of the four courses specified in the application to the Tribunal and that the Tribunal does have jurisdiction in respect of the deemed decisions described in its review application. It contends that the determinations of a longer period pursuant to ss 21(3) and 49(3) of the TEQSA Act were invalid because:
·the reasons for the decisions set out in the minutes of the meeting of 28 September 2017 were not beyond its control.
·The Agency’s more recent reliance on Workload and Funding as the reasons for the determinations is not supported by its 2016/2017 annual report.
·The Agency failed to give Barque written notice of the longer period determination within seven days, contrary to ss 21(5) and 49(5) of the TEQSA Act. Notice was given within eight days.
·The Agency failed to give Barque written reasons for the determinations within seven days.
·The Agency failed to give Barque any notice of workload or findings as reasons for the determinations.
CONSIDERATION
Matters not in contention
It is not disputed that:
·Sections 21(2) and 49(2) of the TEQSA Act required the Agency to make a decision in respect of each application on or before 15 November 2017, nine months after receiving the application, unless it validly extended the period pursuant to ss 21(3) and 49(3) of the TEQSA Act.
·The Agency did not decide the registration and accreditation applications within the nine month period ending 15 November 2017.
·On 6 October 2017, the Agency informed Barque that it had determined a longer period pursuant to ss 21(3) and 49(3) of the TEQSA Act until 30 April 2018 because:
TEQSA has made these decisions on the basis that, for reasons beyond its control, decisions on the applications cannot be made within nine months. These reasons relate to issues identified during the substantive assessment phase which may require a response from Barque.
·Notification of the determinations and the reasons for the determinations did not occur within seven days of the making of the determination as required by ss 21(5) and 49(5) of the TEQSA Act.
·The Agency did not notify Barque of its right to apply for review of the determinations.
The Agency accepts that the reasons given for the determination were very brief.
Barque did not contend that the agency had not complied with the requirement to make a decision to determine the longer period not later than six weeks before the end of the relevant period as required by sections 21(4) and 49(4).
Were the Agency’s decisions to extend the period pursuant to ss 21(3) and 49(3) of the TEQSA Act valid?
The starting point is Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 (Project Blue Sky) and, relevantly, [91] of that decision where their Honours, Justices McHugh, Gummow, Kirby and Hayne said:
An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void everything done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.
The Tribunal has followed that approach In this case. Other cases were referred to, including Commissioner of the Australian Federal Police v Oke [2007] FCAFC 94 (Oke); (2007) 159 FCR 441; the Minister for Immigration and Citizenship v SZIZO [2009] HCA 37; Kutlu v Director of Professional Services Review [2011] FCAFC 94; (2011) 197 FCR at page 177; and Tasker v Fulwood [1978] NSWLR 20. Those cases were taken into account, but, at the end of the day, the Tribunal has had to deal with a different statutory scheme applying the principles set out by their Honours in Project Blue Sky.
Sections 21(4), 21(5)(a) and (b), s 49(4), and 49(5)(a) and (b) of the TEQSA Act impose conditions regulating the exercise of a statutory power.
Sections 21(4) and 49(4) state that the Agency must determine a longer period not later than six weeks before the end of the first nine month period. The Agency complied with that condition.
Section 21(5)(a) and (b) and section 49(5)(a) and (b) require notification of the determination in writing and the giving of reasons for decision in writing within seven days of making a determination.
The Agency did not comply with those conditions.
The language of the statute
In Oke, Branson and Lindgren JJ approached their task in accordance with Project Blue Sky. Relevantly for this case, their Honours said, at [32]:
Weight, although not compelling weight, is to be given to the use of the word ‘must’ in section 3(H)1 [of the Crimes Act].
The Tribunal accepts the submission made by counsel for the Agency that the use of the word ‘must’ is not the end of the inquiry. It does not accept the submission that ss 21(7), 49(7) and 186(2) of the TEQSA Act assist the Agency’s case by contrasting their operation with the operation of the sections the subject of this decision.
The use of ‘must’ in ss 21(2), 49(2) and 186(2) has a different effect from its use in ss 21(4) and (5) and 49(4) and (5).
A failure to comply with the requirement to make a decision within the time specified in ss 21(2) and 49(4) and (5) of the TEQSA Act is taken to be a rejection of the application pursuant to ss 21(7) and 49(7) and results in a right of review in this Tribunal: s 183. That is, ss 21(7) and 49(7) provides a remedy for the failure to act within the specified time.
The effect of those provisions is that the maximum period of time the Agency has within which to make a decision is 18 months, if it determines to extend the period for a further nine months under ss 21(3) and 49(3). A right of review to the Tribunal lies if the agency rejects an application, or makes no decision, in the nine month period or the extended period.
Where the period is extended, pursuant to ss 21(3) or 49(3), s 21(4) and (5) and s 49(4) and (5) apply.
Prima facie, those provisions require the determination to be made at least six weeks before the end of the nine month period and written notification of and reasons for the determination, must be provided within seven days of the determination, that is, a minimum of five weeks before the end of the ninth month period.
If the conditions on the statutory power were not strictly complied with, a decision to extend the period could be made on the last day of the nine month period and, therefore, notice could be given thereafter. The period would be validly extended.
In terms of the right of review that is conferred in relation to an extension of the time, it seems to the Tribunal that the five week period, which is a consequence of the operation of the relevant provisions, provides a timeframe within which the applicant for registration or accreditation can review the decision and take steps to exercise its right to seek a review within the Tribunal.
The subject matter of the statute
The present application concerned registration and accreditation, the two pillars fundamental to the operation of the TESQA Act: see s 4, which provides a simplified outline of the TESQA Act.
The consequence for the parties of holding void every act done in breach of the conditions
If every act done in breach of the conditions set out in ss 21(4) and (5) was held to be void, the effect would be that the nine month period would not be extended and if the agency had not made a decision, as is the case here, a right of review would accrue pursuant to ss 21(7) and 49(7) of the TEQSA Act. If every act done in breach of those conditions was valid, the Tribunal does not consider that the provisions would operate in a way that it was clearly intended on its face.
In terms of the consequences for the Agency if breach of those conditions results in invalidity of the decision, the Tribunal does not consider them to be onerous. The Agency does not face an onerous task in complying with the provisions. In this case, it seems to the Tribunal that it was seeking to do so. It did comply with the six week period and it only failed to comply with the seven day period by one day, and although that may seem unimportant in practice, in terms of the law, both parties accepted that it was outside that seven day period.
Although not referred to in argument, ss 21(6) and 49(6) also impose a condition regulating the exercise of a statutory power when the Agency registers a provider or accredits a course. The Agency must determine the period of registration or certification. That period must not exceed seven years.
In the event the period determined was longer than seven years, the question arises whether the determination of the period would be invalid or whether the provision operates to impose a seven year maximum period. In any event, the Tribunal finds that it is part of a statutory scheme to impose timeframes on the agency in the carrying out of its activities.
Having undertaken the analysis set out by their Honours in Project Blue Sky, the Tribunal finds that there is a legislative purpose to invalidate any act that fails to comply with conditions set out in ss 21(4), 21(5)(a) and (b), 49(4), and 49(5)(a) and (b) of the TEQSA Act. The TEQSA Act sets out timeframes which have to be complied with. If they are not, the acts in breach of those timeframes are invalid. Where there is a failure to act, the statute provides a deemed remedy: ss 21(7), 49(7) and the provision referred in the s 183.
The Tribunal, therefore, finds that the decisions taken by the Agency on 28 September 2017 to determine longer periods were invalid. It follows that the nine month period applied: ss 21(2) and 49(2). The Agency had not made a decision within that period. Therefore, there is a right of review in this Tribunal pursuant to section 21(7) and 49(7) of the TEQSA Act.
The Tribunal has jurisdiction in this matter. Given those findings, the Tribunal does not consider it necessary to deal with the arguments about the reasons for decisions. As already stated, the respondent accepted that they were brief.
The Tribunal understood counsel for Barque to submit that it was unnecessary to deal with the issue of the “nested courses” in this application and that counsel for the Agency agreed. The Tribunal accepts that it is appropriate for the Tribunal which hears the proceedings to deal with the question, on all the evidence and after a closer analysis of both the evidence and the statute has been undertaken than was done in this application. The issue of “nested courses” is complex.
Decision

The Tribunal is satisfied that it does have jurisdiction to consider the application for review filed on 13 December 2017.

I certify that the preceding 36 (thirty six) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

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Associate
Dated: 19 February 2018

Dates of hearing: 18 January 2018 and 8 February 2018

Counsel for the Applicant: Mr C Botsman

Advocate for the Applicant: Mr J Stacey

Solicitors for the Respondent: Mr N Riordan

Dates of hearing:	18 January 2018 and 8 February 2018
Counsel for the Applicant:	Mr C Botsman
Advocate for the Applicant:	Mr J Stacey
Solicitors for the Respondent:	Mr N Riordan