Darwin Human Resource and Computer Academy Pty Ltd and Australian Skills Quality Authority

[2017] AATA 738

Darwin Human Resource and Computer Academy Pty Ltd and Australian Skills Quality Authority [2017] AATA 738 (24 May 2017)

Division:GENERAL DIVISION

File Number:           2017/2414

Re:Darwin Human Resource and Computer Academy Pty Ltd

APPLICANT

AndAustralian Skills Quality Authority

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:24 May 2017

Place:Sydney

The application for a stay of the decision of the Respondent dated 3 April 2017, in respect of TAE40110 and TAELLN411, is refused. The temporary stay entered on 19 May 2017 is dissolved.

...............................[sgd].........................................

Senior Member A Poljak

CATCHWORDS

ADMINISTRATIVE – stay application – s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) - Australian Skills Quality Authority - merits of substantive matter – public interest factors – financial aspects – reputational damage - stay application refused

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 41(2)

National Vocational Education and Training Regulator Act 2011 (Cth) ss 3, 22

CASES

Secretary, Department of Employment and Workplace Relations v Anastasiadis [2007] AATA 1065

SECONDARY MATERIALS

Standards for Registered Training Organisations 2015

REASONS FOR DECISION

Senior Member A Poljak

24 May 2017

1. Darwin Human Resource and Computer Academy Pty Ltd (“the applicant”) is an ‘NVR registered training organisation’ offering numerous vocational and educational courses and training packages in the Northern Territory.

2. Australian Skills Quality Authority (“the respondent or ASQA”) is the national vocational education and training regulator as those terms are defined in section 3 of the National Vocational Education and Training Regulator Act 2011 (Cth) (“the NVR Act”). Section 22(1) is the NVR Act states:

   “An NVR registered training Organisation must comply with the standards for NVR Registered Training Organisations.” [Emphasis added]

3. The standards for registered training organisation’s (“RTO”) are contained in the legislative instrument Standards for Registered Training Organisations 2015, which came into effect at various times between 1 January 2015 and 1 April 2015 (“RTO Standards”).

4. The applicant has been registered as an RTO with the Northern Territory Accreditation Authority since May 1997. On 1 July 2011 and 1 April 2016, the RTO was automatically registered as an ‘NVR registered training organisation’ with ASQA without an audit.

5. The applicant is currently registered to deliver the following training products from the TAE training packages in the Northern Territory:

   oTAE40110 Certificate IV in Training and Assessment “TAE40110”); and

   oTAELLN411 Address adult language, literacy and numeracy skills (“TAELLN411”).

6. On 5 April 2015, TAE40110 was superseded by non-equivalent qualification; TAE40116 Certificate IV in Training and Assessment (“TAE40116”). As a consequence, all students enrolled in TAE40110 will need to have completed the course or transferred to a new qualification by 5 October 2017.

7. On 15 August 2016, the applicant applied to add TAE40116 to its scope of registration (“TAE application”). Following an initial review of this application, the respondent referred the matter for a detailed audit and a number of deficiencies were found with both the application to add TAE40116 and with the training package for TAE40110. Following notification and review of rectification evidence provided by the applicant, the respondent made the following decision (“the decision”):

   oReject, under s 33 of the NVR Act, the TAE application to change the scope of registration to include TAE40116; and

   oAmend, under s 36(2)(d) of the NVR Act, the RTO’s scope of registration to remove TAE40110 and TAELLN411.

8. On 3 April 2017, the applicant was notified of the decision and advised that it was to come into effect on 8 May 2017. However, the respondent has extended the date of the effect of the decision to 19 May 2017.

9. The applicant has applied to the Tribunal for review of the decision (“the substantive application”).

10. These proceedings concern an application for a stay of the operation and effect of the decision, in relation to TAE40110 and TAELLN411, until final determination of the substantive application. The applicant does not press’s application for a stay of the decision in relation to TAE40116.

11. A decision that is subject to review has full effect and operation unless and until the Tribunal makes an order under s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) to stay the operation and effect of the decision. Such an order may be made if the Tribunal is “of the opinion that it is desirable to do so after taking into account the interests of any person who may be affected by the review…”. It is not intended to simply protect an applicant from the consequences of a decision.

12. There are numerous authorities setting out a non-exhaustive set of factors to be taken into account when determining an application for a stay order. In Secretary, Department of Employment and Workplace Relations v Anastasiadis [2007] AATA 1065 at [6]-[7], the Tribunal summarised the well-established relevant factors and principles which may be considered when determining a stay application:

    [6] The decision whether to grant a Stay is entirely discretionary. It follows that an applicant does not have an automatic right to a Stay. Given the effect of s 41(1) of the AAT Act, it must necessarily be inferred that the reviewable decision, the decision of the SSAT in this case, is correct until proven otherwise. Further, the general principle applied by the courts that, prima facie, the successful party has the right to the fruits of a judgement should also apply in the case of Tribunal decisions. In the courts, an applicant for a Stay is required to show that there are special circumstances which would justify the stay of execution of the judgement. (emphasis added)

    [7] The matters which are considered by the courts to constitute special circumstances are similar to those enunciated by the Tribunal when dealing with Stay applications.  Deputy President G.D. Walker in Re Secretary, Department of Workplace Relations and Nicholas [2006] AATA 497 at [21] and Senior Member B.J. McCabe in Re Labrador Liquor Wholesale Pty Ltd and CEO of Customs [2006] AATA 485 at [5] set out the following factors which may need to be considered in determining whether a Stay should be granted.

    (a)The prospects of success or the merits of the applicant’s case on review.

    (b)Whether there will be prejudice to the parties or anyone else if a Stay were not granted.

    (c)Whether it is in the public interest to grant a Stay.

    (d)That the review application, if successful, would be rendered nugatory or pointless if the Stay was not granted.

13. These factors are generally the touchstone against which consideration of stay applications are to be approached.

14. The applicant contends that a stay order is urgently required because of the date of effect of the decision; the alleged non-compliance identified in the decision are either not admitted or are now rectified; the applicant will suffer large financial losses resulting in a significant reduction in staff numbers adversely impacting the applicant’s financial ability to have the decision reviewed; the applicant’s history of compliance and its commitment to remaining compliant; and the number of students currently enrolled in TAE40110 and TAELLN411 that would be adversely impacted if the decision was implemented prior to review.

    CONSIDERATION

15. While it is neither necessary nor appropriate for me to determine the substantive matter on an interlocutory application, I must be satisfied that the applicant has some prospects of success. This can be a difficult task given that all of the evidence intended to be relied upon at hearing of the substantive matter may not be before me. This is the case here.

16. At the hearing of this interlocutory application, the applicant advised that they intended to rely on additional documentation at hearing of the substantive matter, particularly in regards to rectification and that they are now compliant with the RTO Standards. I heard evidence from Ms Cato, the developer of assessment materials from Cato Human Resources, who advised that she provided material for TAE40110 and TAELLN411 (“Cato material”). Ms Cato’s records indicated that the applicant purchased the material online on 20 September 2016 for TAE40110 and on July 2016 for TAELLN411 but was unable to confirm when the materials would have been implemented. She was adamant that the materials were compliant with the RTO Standards; however there is no material before me to establish this fact. Ms Cato also advised at hearing that the materials were updated in late April 2017 as a consequence of the audit conducted by ASQA.

17. Ms Van Dijk, director of the applicant, also provided evidence in support of this interlocutory application. She confirmed that hearing, that none of the Cato material was provided to ASQA.

18. The applicant’s legal representative advised that the Cato material would be filed and relied upon at the hearing of the substantive matter. I am also advised that there is evidence to be provided from an external advisor employed by the applicant to oversee their operations and current trainers employed by the applicant. This evidence is said to be compelling and supports the applicant’s contention that they are now compliant with the RTO Standards. In light of this, the applicant may well have an arguable case and without reviewing this material, it cannot be said that their case is without merit.

19. In regards to consequences for the applicant if the stay were not granted, I accept that some reputational damage may be suffered. In regards to any financial losses, I have no evidence before me to substantiate this claim.

20. My main concern rests with public interest factors.

21. The evidence before me shows that there are currently 11 students enrolled in TAE40110. If the decision is implemented, the students would have the opportunity to complete their training at another institution that is compliant with RTO Standards. On the other hand, if a stay is granted, this poses a public interest concern in that the level of non-compliance is likely to adversely impact on the quality and assessment outcomes for the applicant’s current and future students and any students that are later trained by those persons.

22. Ms Holt, a manager of regulatory operations with ASQA, makes the following statement in her affidavit, affirmed 18 May 2017:

    The TAE qualifications play a key role in underpinning the quality of the entire vocational education and training (VET) system, and accordingly, the quality of every other VET qualification. Trainers and assessors must have the relevant capabilities, particularly in relation to conducting assessment. The VET sector requires rigorous assessment to occur to confidently ensure that Australia has an appropriate skilled workforce.

23. While I acknowledge that there may be some hardship for teachers and staff and inconvenience to the students, I am concerned that the students who are still enrolled, or who may enrol, may rightly feel that their qualifications have been undermined.

24. There is insufficient evidence before me to support the contention that the review application would be rendered nugatory if the stay order were not urgently granted. By 5 October 2017, all TAE40110 students will need to have completed their studies or have transitioned to a new qualification.

    DECISION

25. Having taken into account the factors advanced by both the applicant and respondent, I have reached the view that, on balance, it is not desirable to order a stay under s 41(2) of the AAT Act. I accept that the applicant may suffer reputational damage, even if it is ultimately successful and I acknowledge that the applicant’s case is not without merit. However, I am very concerned by the public interest factors raised by the respondent. If the decisions are affirmed, the level of non-compliance is likely to adversely impact on the quality and assessment outcomes for the applicant’s current and future students and any students that are later trained by those persons.

26. The application for a stay is refused. The temporary stay entered on 19 May 2017 is dissolved.

I certify that the preceding 26 (twenty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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Associate

Dated: 24 May 2017

Date of hearing:	19 May 2017
Solicitors for the Applicant:	Mr K Kadirgammar and Ms M Gabriel, Ward Keller Lawyers
Solicitors for the Respondent:	Ms S Kendall and Mr A Grullemans