Barque Institute Pty ltd and Tertiary Education Quality and Standards Agency

The Administrative Appeals Tribunal considered an application for review by Barque Institute Pty Ltd against decisions made by the Tertiary Education Quality and Standards Agency (TEQSA). The dispute concerned TEQSA's decisions to extend the time within which it could make a determination on Barque's applications for registration and accreditation.

The primary legal issue before the Tribunal was whether TEQSA's decisions to extend the decision-making period were valid, given that TEQSA had not complied with the notification and reasons requirements stipulated in sections 21(5) and 49(5) of the *Tertiary Education Quality and Standards Agency Act 2011* (Cth). The Tribunal's jurisdiction to review such decisions was not in dispute, arising from sections 25 of the *Administrative Appeals Tribunal Act 1975* (Cth) and sections 183 and 187 of the TEQSA Act.

The Tribunal applied the principles established in *Project Blue Sky Inc v Australian Broadcasting Authority* (1998) 194 CLR 355, which dictates that an act done in breach of a statutory condition is not automatically invalid. The determination of validity depends on discerning the legislative purpose, considering the language of the statute, its subject matter and objects, and the consequences of invalidating the act. While TEQSA had complied with the requirement to determine a longer period not later than six weeks before the expiry of the initial nine-month period, it failed to notify Barque in writing of the determination and provide written reasons within seven days, as mandated by sections 21(5)(a) and (b) and 49(5)(a) and (b). Despite the use of the word "must" in these provisions, the Tribunal found, by reference to analogous cases, that the legislative purpose was not to invalidate the extension decision itself for non-compliance with the notification and reasons requirements, but rather to ensure procedural fairness.

The Tribunal found that it had jurisdiction to consider the application for review.