Guardrite Security and Industry Training Pty Ltd v Chief Executive, Department of Education and Training
[2012] QCAT 92
•8 March 2012
| CITATION: | Guardrite Security And Industry Training Pty Ltd v Chief Executive, Department of Education and Training [2012] QCAT 92 |
| PARTIES: | Guardrite Security And Industry Training Pty Ltd |
| v | |
| Chief Executive, Department of Education and Training |
| APPLICATION NUMBER: | GAR389-11 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Kerrie O'Callaghan, Senior Member |
| DELIVERED ON: | 8 March 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The application for review is dismissed. |
| CATCHWORDS: | REVIEW APPLICATION – no jurisdiction – not a reviewable decision under enabling Act Queensland Civil and Administrative Tribunal Act 2009, s 17 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Guardrite Security And Industry Training Pty Ltd (Guardrite) is a registered training organisation under the Vocational Education, Training and Employment Act 2000 (the enabling act).
The enabling act regulates the registration of training organisations.
Guardrite was the subject of a compliance audit carried out under the enabling act to ensure that it complied with national standards. The audit report noted that there was “significant non compliance” with the appropriate standards.
As a result Guardrite was required to provide evidnece of rectification by a certain date with respect to the non compliance.
Guardrite seeks to review the finding in the audit report of non compliance.
Guardrite also sought an interim order to the effect that they were not required to submit the rectification report pending the outcome of this review application.
The Tribunal, on considering the review application had concerns about its jurisdiction to determine the review. Submissions were sought from parties on the statutory basis for Guardrite’s contention that the Tribunal had jurisdiction to review the decision contained in or related to the audit report and on the issue of the interim order application.
Submissions were filed by parties on both issues.
I dismissed the interim order application. Guardrite has sought reasons for that decision. In the meantime both parties have filed submissions in relation to the jurisdiction issue so I will deal with both the reasons for the refusal of interim order and the decision on the substantive application in this decision.
In its application for an interim order Guardrite submits that if the Tribunal accepted it’s concerns with respect to the audit report it would not be necessary for it to prepare the rectification report. As such they should not have to prepare the report pending the determination of the review application.
The Departments (DET’s) submission on the interim order was two fold:
1. The Tribunal had no jurisdiction to hear the review and as such no jurisdiction to grant the interim order alternatively;
2. if it did have jurisdiction, it was not in the interests of justice to delay the audit process.
On the jurisdiction issue, Guardrite provided extracts from legislation and references to websites which it says supported a finding that there was a statutory basis for its contention that the Tribunal had jurisdiction to determine the review of the audit finding.
They submitted that due process was not followed and there was an error in the audit process.
DET’s position is that the Tribunal had no jurisdiction to make the orders sought as in fact no reviewable decision had been made.
They set out the background and context of the audit within the statutory framework of regulation of registered training organisations.
Effectively, the enabling Act requires registered training organisations to comply with the requirements of national standards. DET through the Training and International Quality Branch (TIQ) conducts audits to measure the compliance of training organisations with the requirements of the national standards.
TIQ then reports the initial audit findings to the training organisation and if there is non compliance identified the organisation is given the opportunity to rectify the non compliance.
The final audit findings are subsequently reported to the Training and Employment Recognition Council (TERC) and it is only at that point that a decision may be made by TERC with respect to the organisation’s registration.
DET submit therefore that the finding of non compliance is not a decision. The auditors can not make decisions about the organisation’s registration. Such a decision can only be made by TERC once the audit process is completed.
Findings
Under section 17(1) of the QCAT Act the Tribunal may only review decisions where an enabling Act specifically confers jurisdiction.
Section 224 of the enabling Act in this case sets out the decisions which QCAT may review.
DET submits that a finding of non compliance in an audit report is not such a decision. It is certainly not specified as a decision which may be reviewed.
They submit that it may be suggested (although it is not specifically suggested by Guardrite) that the finding of non compliance may come within section 224(1)(a) of the enabling Act which provides that a decision about the registration of a training organisation is a reviewable decision.
The finding of non compliance in the auditing report is not a decision about registration. It is simply part of the process which may or may not lead to a decision being made by TERC about Guardrite’s registration.
I accepted the Department’s submission that an interim order could only be made if the Tribunal had jurisdiction to determine the substantive application.
On the basis of the submissions filed I formed the view that the Tribunal did not have jurisdiction to make the orders sought as no reviewable decision had been made and as such dismissed the application for an interim order.
It follows that the substantive application must also be dismissed.
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