Cambridge International College (Vic) Pty Ltd and Australian Skills Quality Authority and Anor - [2013] AATA 805

[2013] AATA 805

Division  GENERAL ADMINISTRATIVE DIVISION
File Number  2013/5497
Re  CAMBRIDGE INTERNATIONAL COLLEGE (VIC) PTY
LTD
APPLICANT

And AUSTRALIAN SKILLS QUALITY AUTHORITY
RESPONDENT

File Number  2013/5498
Re  CAMBRIDGE INTERNATIONAL COLLEGE (VIC) PTY
  LTD
APPLICANT

And MINISTER FOR EDUCATION
RESPONDENT

DECISION
Tribunal  Deputy President S A Forgie
Date  13 November 2013
Place  Melbourne
The Tribunal has decided that:
(1)the Australian Skills and Quality Authority made a decision under s 36 of the National Vocational Education and Training Regulator Act 2011 acting under power given to it by that provision;
(a)as the applicant has applied for review of that decision, the Australian Skills and Quality Authority is to be the decision-maker and so a party to that proceeding; and

(2)the Australian Skills and Quality Authority made a decision under s 83 of the Education Services for Overseas Students Act 2000 as a delegate of the Minister for Education;
(a)as the applicant has applied for review of that decision, the Minister for Education is taken to be the decision-maker and so a party to that proceeding.

…[sgd] S A Forgie…
Deputy President

CATCHWORDS
PRACTICE AND PROCEDURE – EDUCATION PROVIDERS - identification of respondents – two reviewable decisions in single document – identify source of power exercised in making each decision.
LEGISLATION
Acts Interpretation Act 1901, ss 20, 34AA, 34AB, 34A
Administrative Appeals Tribunal Act 1975, ss 25(7), 30(1)

Commonwealth of Australia Constitution Act, s 64
A, Education Services for Overseas Students Act 2000, ss 4A, 5, 9AB, 9AC, 9AD, 9AE, 9AF, 14A, 33, 49, 47C, 53A, 83, 95, 170, 176
Education Services for Overseas Students (TPS Levies) Act 2012, ss 9(3), 10(2)
Legislative Instruments Act 2003, s 13
National Vocational Education and Training Regulator Act 2011, ss 2A, 3, 33, 36, 37, 38, 155, 156, 157, 160, 181, 199, 203, 224
Public Service Act 1999
Administrative Appeals Tribunal Regulations 1976, r 19(5)
National Vocational Education and Training Regulator Regulations 2011, r 5

National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007, cll 4.1, 7.1
Administrative Arrangements Order
CASES

Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth [1977] HCA 71; (2007) 139 CLR 54
REASONS FOR DECISION

In the course of preparing the formal decisions I made on applications for stay made by Cambridge International College (Vic) Pty Ltd (Cambridge), it became apparent that the Tribunal’s Registry took one view of the identity of the respondent in one of the cases while I took another. According to the guidelines by which it operates, the Tribunal’s Registry had identified them as the Australian Skills Quality Authority (ASQA) in relation to a decision made under the National Vocational Education and Training Regulator Act 2011 (NVR Act) and the Secretary of the Department of Education (Secretary) in relation to a decision made under the Education Services for Overseas Students Act 2000 (ESOS Act). I have identified them as ASQA (known as the National VET Regulator) in relation to the decision made under the NVR Act and the Minister for Education (Minister) in relation to the decision made under the ESOS Act.

I have set out my reasons for reaching my conclusion so that there is a basis for my decision to be issued by the Registry with a respondent different from that which its guidelines require it to insert. In doing so, it is not my position that the decision-maker will always be the Minister in relation to decisions made under the ESOS Act or always ASQA under the NVR Act. In summary, my position is that the decision-maker has to be identified by reference to the decision of which review may be sought in the Tribunal. The entity given responsibility to make that decision is the decision-maker and so a party to the proceeding. That is so whether the entity itself makes the decision or a delegate of that entity. When regard is had to the NVR Act and the ESOS Act, it is apparent that reviewable decisions may be made by various entities. Therefore, the identity of the respondent will vary from proceeding to proceeding.[1]
BACKGROUND
[1] I note that ASQA is the entity designated as the decision-maker in some instances. In others, it may be appointed as a delegate of another entity designated to be the decision-maker. I respectfully suggest that it would assist both potential applicants and, ultimately, the Tribunal’s Registry if it were to identify the basis on which it is making a decision or decisions. In the present case, for example, ASQA told Cambridge that “… under s 83(1)(b) of the ESOS Act, ASQA has made the decision to suspend the following qualifications for delivery to overseas students …”. The only basis on which it could have done so is as a delegate of the Minister. That is to be contrasted with its advice to Cambridge that “… in accordance with s 37(2) of the NVR Act, ASQA hereby gives you notice that it has made a decision to suspend part of your registration under section 38 …”. In that case, ASQA made the decision as the entity designated by s 38 of the NVR Act to make the decision. The failure to distinguish between the different bases on which the decisions were made by ASQA has also, I suspect, led it to advise Cambridge of its review rights under s 203(2) of the NVR Act as if they applied to both decisions and to make no mention of its review rights under s 176 of the ESOS Act. Those under s 203(2) related only to the decision under s 38 of the NVR Act and not to that under s 83(1)(b) of the ESOS Act. Only s 176 of the ESOS Act provides for review of the latter.
In this matter, separate application fees were imposed by the Tribunal’s Registry in respect of each decision of which Cambridge sought review. Cambridge may, or may not, have been aware of s 19(5) of the Administrative Appeals Tribunal Regulations 1976 (Regulations) when it paid those application fees and it may, or may not, have raised the matter with the Registry and a decision made on it. Regulation 19(5) of the Regulations provides: “If 2 or more applications: (a) relate to the same applicant; and (b) may, in the opinion of the Registrar, a District Registrar or a Deputy Registrar, be conveniently heard before the Tribunal at the same time; the Registrar, a District Registrar or a Deputy Registrar may order that only 1 fee is payable for those applications.” The exercise of that power does not depend upon each of the decisions, to which the applications relate, being made by the same decision-maker. It depends on the matters being conveniently heard at the same time. Convenience will be determined by reference to such matters as the degree to which the evidence required to determine the relevant issues is common to both and whether it is given by the same persons even if the degree of overlap is small. Common representation, such as is the case in these two matters in which ASQA represents itself and the Minister, may also be relevant. As factors of this sort vary from matter to matter, consideration under r 19(5) of the Regulations may lead to different outcomes but it is a matter that should be expressly considered in matters of this sort.
The parties to a proceeding
Those who are parties to a proceeding in the Tribunal are identified in s 30(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act). Among them is “the person who made the decision”.[2] There are occasions on which the person who actually made the decision no longer holds the particular position authorised to make that decision. A person’s right to apply for review of an administrative decision is not affected by that for the Commonwealth administration is seamless for those purposes. For those reasons, s 25(7) provides:
“Where:
(a)a person has made a decision in respect of which an application may be made to the Tribunal;
(b)the person made the decision by reason that he or she held or performed the duties of an office or appointment; and
(c)the person no longer holds or performs the duties of the office or appointment;
this Act has effect as if the decision had been made by:
(d)the person for the time being holding or performing the duties of that office or appointment; or
(e)if there is no person for the time being holding or performing the duties of that office or appointment or the office no longer exists – such person as the President or an authorised member specifies.”[3]
[2] AAT Act; s 30(1)(b)
[3] AAT Act; s 25(7)

Broad outline of structure of NVR Act and ESOS Act
A. The NVR Act

In very broad terms, the NVR Act is intended to regulate vocational education and training (VET) using a standards-based quality framework and risk assessments. In doing so, it is intended that there will be national consistency in the delivery of VET and the quality, flexibility and innovation in VET will be enhanced and protected. Students will also be protected and the VET system will be appropriate in view of Australia’s social and economic needs for a highly educated and skilled population.[4]
[4] NVR Act; s 2A

The NVR Act provides for the establishment of the National Vocational Education and Training Regulator (National VET Regulator).[5] It may also be known by a name specified in regulations: NVR Act.[6] The name specified in the National Vocational Education and Training Regulator Regulations 2011 (NVR Regulations) is that of the “Australian Skills Quality Authority”.[7] A Chief Commissioner and two Commissioners comprise the National VET Regulator.[8] The Chief Commissioner is also its Chief Executive Officer and responsible for the management and administration of the National VET Regulator.[9]
[5] NVR Act; s 155(1) and see also s 3
[6] NVR Act; s 155(2)
[7] NVR Regulations; r 5
[8] NVR Act; s 156
[9] NVR Act; ss 179 and 180

The NVR Act provides for decisions to be made on a number of issues. Some are made by the National VET Regulator in the course of carrying out its functions. Those functions are directed to the regulation of VET. Examples are decisions relating to the registration of an organisation as an NVR registered training organisation, the accreditation of courses that may be offered and/or provided by registered training organisations and the conduct of compliance audits of NVR registered training organisations.[10] The Minister may give directions to the National VET Regulator under, and within the limits provided by, s 160. Those limits restrict the Minister from giving directions that are about, or in relation to, a decision made in relation to the registration of a particular body, the accreditation of a particular course or a person in respect of whom a particular VET accredited course is accredited. Decisions of that sort are made by the National VET Regulator under Parts 2, 3 and 4 of the NVR Act. The Minister may also give directions to the Chief Executive Officer about the performance of the functions of that position but not in relation to the performance of powers under the Public Service Act 1999.[11]

[10] NVR Act; ss 157(1)(a), (b) and (c)

[11] NVR Act; s 181

Part 8 of the NVR Act is concerned with standards and requirements that have been agreed to by the Ministerial Council for Tertiary Education and Employment (Ministerial Council).[12] With the agreement of that Council, the Minister may, for example, make standards for the NVR registered training organisations or make requirements for assessing whether a person is a fit and proper person.[13]
[12] NVR Act; s 3
[13] NVR Act; ss 185 and 186

Provision for review of decisions is made in the NVR Act in Part 9. The Tribunal’s power to review decisions is found in s 203 which provides:
“(1) Applications may be made to the Administrative Appeals Tribunal for review of a reviewable decision if the National VET Regulator has affirmed or varied the decision under section 201.
(2)Applications may be made to the Administrative Appeals Tribunal for review of a reviewable decision if the decision was made by a person other than a member of the staff of the Regulator.”[14]
[14] Section 203(2) would seem to have been included because s 224 permits the National VET Regulator to delegate all or any of its powers to a variety of persons or bodies. I return to this at [17]-[19] below.

What is meant by a “reviewable decision” is set out in s 199. All of the decisions set out in that section are decisions made by the National VET Regulator and not by any other entity such as the Minister. In so far as it refers to an administrative sanctions decision of the type made under s 38, s 199 provides:
“For the purposes of this Act, each of the following decisions of the National VET Regulator is a reviewable decision:

Reviewable decisions

…

A decision to suspend all or part of an NVR registered training organisation’s registration.

…”

B.The ESOS Act

The ESOS Act complements the NVR Act. Again in very broad terms, it is intended to assure overseas students that they will receive the tuition they have paid for or receive a refund, protect and enhance Australia’s overseas reputation for quality education and training services and to complement its migration laws by ensuring that providers collect and report information relevant to the administration of the law relating to student visas.[15]
[15] ESOS Act; s 4A

The way in which the ESOS Act carries out its aims is by regulating those who provide courses to overseas students. They must be registered to provide particular courses at particular locations.[16] The ESOS Act requires them to meet certain obligations relating to financial matters, record-keeping and notification. A registered provider must, for example, either refund a fee or provide an alternative course if it does not start or finish a course.[17] If a provider has defaulted or not discharged its obligations to an overseas student, the TPS Director must provide the student with options for suitable alternative courses if any are available.[18] In the case of a provider’s default, a call is made on the Overseas Students Tuition Fund to pay for alternative courses or to provide refunds not already made by the provider.[19]
[16] ESOS Act; s 8
[17] ESOS Act; s 46D
[18] ESOS Act; s 49 In general terms, the TPS Director manages the Overseas Student Tuition Fund, sets the amount of TPS levy and assists students to find alternative courses and provides refunds in the case of defaults. The TPS Director is a key person in the Tuition Protection Service provided for in Part 5 of the ESOS Act.
[19] ESOS Act; s 54B(b)

The ESOS Act provides for decisions to be made on a number of issues by various persons. Some decisions are broadly based. In that category comes the Minister’s making a National Code of Practice for Registration Authorities and Providers for Education and Training to Overseas Students (National Code) under Part 4.[20] So too does the Minister’s specifying criteria to be applied in considering whether a particular course is a suitable alternative course for the purposes of the ESOS Act[21] or specifying the requirements for a notice given by a registered provider to an overseas student who defaults in relation to a courts provided by that provider at a location.[22]
[20] ESOS Act; s 33
[21] ESOS Act; s 49(6)
[22] ESOS Act; s 47C(4)

Other decisions are directed to particular providers or issues. They include the registration of approved providers[23] by the Secretary under s 9AB and the courses and locations that the provider is registered to provide as well as the period for which the approved provider is registered.[24] Some may be made by one person or another but who makes it depends on whether the provider has, or has not, been registered. I refer in particular to s 9AD. Section 9AD provides for the imposition of conditions on the registration of a provider if the designated authority[25] has approved the provider but has imposed a condition on registration. The Secretary alone has power to impose a condition when, at the time the condition was imposed by the designated authority, the provider was not registered under s 9AB.[26] Both the Secretary and the Minister have a similar power in relation to those providers which were registered under s 9AB at the time of the imposition of the condition.[27] The Secretary has a further power under s 9AE to impose a condition using his or her initiative. The power to vary or remove a condition rests with the person who imposed it be it the Secretary or the Minister.[28] Other powers are given under the ESOS Act to other entities. Among them are decisions made by the TPS Director. Some take the form of a determination of the amount of TPS levy required from each provider who is required under s 24(1) to pay a contribution. In making that determination, the TPS Director must determine the amount of the levy in accordance with the legislative instrument made under ss 9(3) and 10(2) of the Education Services for Overseas Students (TPS Levies) Act 2012 in the relevant year.[29]
[23] An approved provider is a provider approved by a relevant designated authority to provide that course at that location to overseas students: ESOS Act; s 5.
[24] ESOS Act; s 9AC
[25] Depending on the identity of the provider, a “designated authority” may be ASQA or another authority specified in s 7A of the ESOS Act.
[26] ESOS Act; s 9AD(1)
[27] ESOS Act; s 9AD(2)
[28] ESOS Act; s 9AF
[29] ESOS Act; s 53A

Section 176 provides for review of certain decisions by the Tribunal. No provision is made for review of decisions having broad application such as those setting standards and criteria. Rather, the decisions which may be reviewed apply to decisions relating to specific providers or courses. Using the examples, to which I have referred, provision is made for the review of a decision that an approved provider should not be registered under s 9AB, a decision that it be registered for a specified period under s 9AC or that the specified period be varied, a decision to impose a condition on a provider’s registration under s 9AD or 9AE or a decision to vary a condition under s 9AF. In so far as it provides for an application to be made to the Tribunal for review of a decision made under s 83, s 176(1)(b) provides that an application may be made for review of “a decision to take any action under section 83”. As a final example, I note that s 176(1)(ag) provides that an application may be made to the Tribunal for review of a decision made under s 53A as to the amount of TPS levy to be paid by the provider.
The decisions
On 2 October 2013, the Regional Manager Compliance of ASQA (RMC) wrote to Cambridge advising of two decisions that had been made. I will refer to the first, which was made under the NVR Act, as the “NVR sanctions decision” and the second, which was made under the ESOS Act as the “ESOS sanctions decision”. The letter set out the various steps that had preceded the making of each decision and then set out the terms of each decision. Those terms were:
NVR sanctions decision
“… In accordance with section 37(2) of the NVR Act, ASQA hereby gives you notice that it has made a decision to suspend part of your registration under section 38 with effect from 30 days from the date of this notification.
The suspension will apply to the following qualifications:
∙          CHC30208 Certificate III in Aged Care
∙          CHC40108 Certificate IV in Aged Care
∙          BSB51107 Diploma of Management”

ESOS sanctions decision

“In addition, under s 83(3)(b) of the ESOS Act, ASQA has made the decision to suspend the following qualifications for delivery to overseas students:
∙          CHC30208 Certificate III in Aged Care
∙          CHC40108 Certificate IV in Aged Care
∙          BSB51107 Diploma of Management”

The Regional Manager Compliance set out the consequences that followed from each decision.

Under the heading of “Reasons for the Decision” (emphasis added), the RMC wrote:
“ASQA has made this decision because it considers that you have, in breach of section 22(1) of the NVR Act, failed to comply with the Standards for NVR Registered Training Organisations. Your organisation has also failed to comply with The National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007. The particulars of the non-compliances are set out in the attached reports dated 11 September 2013.”

The letter then went on to advise Cambridge that it could apply to the Tribunal for review of the “decision” under s 203(2) of the NVR Act.

The statutory basis for each decision
A. The NVR sanctions decision

Providing it follows the natural justice requirements set out in s 37 of the NVR Act, the National VET Regulator[30] may take one or other of six steps specified in s 36(2). In deciding whether to take one or other of those steps, it must have regard to the matters set out in s 36(3). One of the steps that the National VET Regulator may take is that set out in s 36(2)(e):
[30] The National VET Regulator is the National Vocational Education and Training Regulator established by s 155(1) of the NVR Act.
“suspend all or part of an NVR registered training organisation’s scope of registration under section 38”.

Section 38(1) is written in very similar terms:
“The National VET Regulator may, by notice in writing, suspend all or part of an NVR registered training organisation’s scope of registration.
Note:Details relating to an NVR registered training organisation whose scope of registration is suspended are included on the National Register, see section 216.”

Provided it does so in writing, the National VET Regulator may delegate all or any of its functions or powers to a member of its staff or to other persons identified in ss 224(1) and (2).[31] Its delegates must comply with any written directions given by the National VET Regulator.[32] A delegate must not sub-delegate any or all of the functions or powers delegated to it unless the National VET Regulator gives its written consent.[33] Sections 34AA, 34AB and 34A of the Acts Interpretation Act 1901 (AI Act) apply to a sub-delegation in the same way as they apply to a delegation.[34]
[31] Other powers of delegation are set out in ss 225 and 226 of the NVR Act but they do not arise in this instance.
[32] NVR Act; s 224(3)
[33] NVR Act; s 224(4)
[34] NVR Act; s 224(7)

I do not have a copy of any delegations that the National VET Regulator has made to members of its staff but, for present purposes, I assume that it has properly made any necessary delegations.

B.The ESOS sanctions decision

Section 83 of the ESOS Act provides that the Minister may take one or more of three actions against a registered provider[35] if of the belief, on reasonable grounds, that the registered provider or its associate or high managerial agent is breaching, or has breached, the national code or a condition of its registration.[36] The three actions the Minister may take are set out in s 83(3). Among them, s 83(3)(b) permits the Minister:
“to suspend the registered provider’s registration for any one or more specified courses for any one or more specified locations (see section 95)”.
The reference to s 95 draws attention to the limits that are placed on a provider whose registration is suspended for a course for a location.
[35] ESOS Act; s 5 A registered provider is n approved provider entered on the Register kept under s 14A as a provider of the course for the location
[36] ESOS Act; s 83(1)

The Minister may make the decision personally but may also delegate the power to do so to:
“(a) the Secretary; or
(b)TEQSA; or
(c)the National VET Regulator; or
(d)an SES employee or acting SES employee in the Department.”[37]
If the Minister delegates a power under s 170(1) of the ESOS Act to the National VET Regulator, the Regulator may sub-delegate that authority to a member of its staff who is an SES employee or acting SES employee or holds, or is acting in, an Executive Level 1 or 2, or equivalent position. That is the effect of s 170(3). If, under s 170(1), the Minister delegates powers to the Secretary, the Secretary may delegate all or any of those powers to the National VET Regulator. That is the effect of s 170(2)(a) of the ESOS Act.
[37] ESOS Act; s 170(1)

Section 170(4) goes on to provide:
“Sections 34AA, 34AB and 34A of the Acts Interpretation Act 1901 apply in relation to a subdelegation under subsection … (3) in a corresponding way to the way in which they apply in relation to a delegation.”
The then Minister delegated his powers to, among others, ASQA (as the National VET Regulator is known[38]), by an Instrument of Delegation dated 18 June 2012. The fact that there is a change in the person holding that position does not affect the ongoing validity of the delegations for s 20 of the AI Act provides that:
“Where in an Act any person holding or occupying a particular office is mentioned or referred to in general terms, such mention or reference shall be deemed to include all persons who at any time hold or occupy for the time being, or perform for the time being the duties of, the office or position.”
[38] See [5] above

I do not have any document showing that ASQA has, in turn, sub-delegated its delegated functions and powers in relation to decisions under s 83(1) to its staff or to other persons but have assumed that it has done so for the purpose of identifying the decision-maker.

THE EFFECT OF ASQA’S MAKING THE DECISIONS

The NVR sanctions decision

The NVR sanctions decision was made by the National VET Regulator acting under the name of ASQA and acting under the authority given to it under s 38 of the NVR Act.

The ESOS sanctions decision

Again acting under the name of ASQA, the National VET Regulator made a decision under s 83(3)(b) to suspend Cambridge’s registration for specified courses in specified locations. This time, it acted as a delegate of the Minister. In doing so, it is not taken to have made the decision as ASQA but as the Minister. The decision is taken to be that of the Minister. This is the effect of s 34AB(1)(c) of the AI Act. It provides:
“Where an Act confers power on a person or body (in this section called the authority) to delegate a function, duty or power:
(a)-(b)…
(c)a function, duty or power so delegated, when performed or exercised by the delegate, shall, for the purposes of the Act, be deemed to have been performed or exercised by the authority;
(d)-(e) …”

It matters not that the entity conferring power to a delegate is required to form an opinion, hold a belief or have a particular state of mind for s 34A of the AI Act provides:
“If:
(a)under an Act, a person’s exercise of a power, or a person’s performance of a function or duty, is dependent upon the person’s opinion, belief or state of mind in relation to a matter; and
(b)that power, function or duty has been delegated under that or any other Act;
the delegate may exercise that power, or may perform that function or duty, upon the delegate’s opinion, belief or state of mind in relation to the matter.”

I note that the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 (National Code) states in Part B:
“3. The Department of Education, Science and Training (DEST) is responsible for administering the ESOS Act and its associated instruments. This includes managing CRICOS and supporting national consistency and policy development to assist the consistent interpretation and application of the ESOS framework, and the National Code in particular.
4.DEST also monitors compliance with the ESOS Act and the standards in the National Code, particularly focussing on student visa integrity and consumer protection. DEST is responsible for investigating and instigating enforcement action for breaches of both the ESOS Act and the National Code. DEST will publish information about its compliance and enforcement activities on a regular basis.
5.The ESOS framework recognises the role registered providers have in ensuring the integrity of Australia’s student visa programme through the ongoing contact with students during their stay in Australia. The Department of Immigration and Citizenship (DIAC) is responsible for regulating students by administering the student visa programme.”[39]
[39] The “ESOS framework” comprises principally the ESOS Act, Regulations made under it, the Education Services for Overseas Students (Registration Charges) Act 1997 (ESOS Charges Act) and the National Code: National Code; Part A, cl 7.1. The reference to “CRICOS” is a reference to the Commonwealth Register of Institutions and Courses for Overseas Students: National Code; Part A, cl 4.1.

The National Code has been made by the Minister under s 33(1) of the ESOS Act by legislative instrument. There is nothing in the ESOS Act to suggest that it will be interpreted by anything other than the normal principles. Therefore, the AI Act will apply to its interpretation. Therefore, it will be interpreted as if it were an Act and each of its provisions a section. The expressions it uses will be given the same meaning as is given to them when they are used in the ESOS Act. It will be read and construed subject to the ESOS Act so that it does not exceed the power given by the ESOS Act to make it.[40]
[40] Legislative Instruments Act 2003; s 13(1)

It is also to be understood according to the general law. It is against that background that the statements in cll 3, 4 and 5 of Part B of the National Code must be understood. They are no more than statements of the effect of the Administrative Arrangements Order (AAO) made by the Governor-General under s 64 of the Constitution appointing “… officers to administer such departments of State of the Commonwealth as the Governor-General in Council may establish. Such officers … shall be the Queen’s Ministers of State for the Commonwealth.” In doing so, the Governor-General exercises the executive power of the Commonwealth vested in the Queen and exercisable by the Governor-General as the Queen’s representative. At the time that the National Code was made, the matters dealt with by the Department of State that is the Department of Education, Science and Training included matters arising under the legislation administered by the Minister of State for Education, Science and Training. That legislation included the ESOS Act and the ESOS Charges Act. This is consistent with the reference in Part B of the National Code to DEST’s being the Department responsible for the administration of the ESOS Act and its associated instruments.

Since then, that AAO has been withdrawn and a further AAO made by the Governor-General on 18 September 2013. The matters dealt with by the Department of State of Education include matters arising under the legislation administered by the Minister of State for Education. Among that legislation are listed The ESOS Act and ESOS Charges Act. Therefore, the effect of ss 19A(3)(b) and (d) of the AI Act is that the reference to DEST in the National Code must now be understood as a reference to the Department of State that is the Department of Education.[41]
[41] Section 19A(3)(b) and (d) provide: “If a provision of an Act: (a) …; (b) refers to a particular Department (including where there is no longer any such Department); then the reference is a reference to: (c) …; (d) in any other case – the Department of State of the Commonwealth that: (i) deals with the matters to which the provision relates; and (ii) is administered by the Minister or Ministers administering the provision.”

The notions underpinning s 64 and the AAO were touched upon by Murphy J in Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth[42] when he said:
“… Under s 64 of the Constitution, the Minister is appointed to administer the Department. The system of responsible government which is reflected in ss. 61 and 64 of the Constitution contemplates (if it does not require) that executive powers and discretions of those in the departments of the executive government be exercised in accordance with the directions and policy of the Minister. Unless the language of the legislation (including delegated legislation) is unambiguously to the contrary, it should be interpreted consistently with the concept of responsible government. It would be inconsistent with that concept for the secretary or any officer of the department to exercise such a power or discretion contrary to the Ministers’ directions or policy (provided of course these are lawful). It is not for the officer to distinguish between ‘government policy’ and the Minister’s policy. The duty of those in a department is to carry out the lawful directions and policy of their Minister. It is the Minister who is responsible to the government and the parliament for the directions and policy.”[43]
[42] [1977] HCA 71; (2007) 139 CLR 54; Barwick CJ, Gibbs, Mason, Murphy and Aickin JJ
[43] [1977] HCA 71; (2007) 139 CLR 54 at 87

It follows that the allocation of responsibility for the administration of a particular enactment to a particular Minister of State does not alter the terms of that enactment. It does not, for example, alter the entities designated in that enactment as the persons who may exercise certain powers or upon whom certain obligations are imposed. I have referred to this lest it be thought that the fact that the Department of Employment has administrative responsibility for the administration of the ESOS Act means that the Secretary to the Department of Education has responsibility for all decisions made under the ESOS Act. That cannot be for, in administering legislation, a Department must act lawfully. The Department of Education and its Secretary could not act lawfully if the Secretary purported to make all of the decisions under the ESOS Act when Parliament requires some decisions to be made by the Secretary, some by the Minister and some by other entities. I am not for a moment suggesting that the Department of Education has purported to take such a step. What I am suggesting is that the Tribunal’s own systems that require it to name the Secretary of the Department of Education as the respondent in all applications seeking review of a decision under the ESOS Act suggest that is the case. It cannot be in a case, such as that with which I am concerned, in which the power to make the decision under s 83(3)(b) has clearly been given to the Minister and not to the Secretary.

For these reasons, I have found the Minister for Education to be the decision-maker and so a party to the proceeding. Therefore, I have named him as the respondent.

I certify that the thirty four preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,

Signed: ……[sgd].......................................................

Leah Berardi Associate

Date of Hearing  31 October 2013
Date of Decision  13 November 2013
Solicitor for the Applicant  Mr M Harris
Slater and Gordon Lawyers

Solicitor for the Respondent Mr P Cribb
Australian Skills Quality Authority

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Citations

Cambridge International College (Vic) Pty Ltd and Australian Skills Quality Authority and Anor [2013] AATA 805

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