Institute of Training Pty Ltd and Australian Skills Quality Authority

Institute of Training Pty Ltd and Australian Skills Quality Authority [2018] AATA 4127 (5 November 2018)
Division:GENERAL DIVISION
File Number(s): 2018/5066
Re:Institute of Training Pty Ltd
APPLICANT

AndAustralian Skills Quality Authority
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:5 November 2018
Place:Sydney

The application for a stay of the ASQA decision of 8 August 2018 is refused.
.........................[sgd]...........................................
Chris Puplick AM, Senior Member
CATCHWORDS
PRACTICE AND PROCEDURE – application to stay decision of Australian Skills Quality Authority – decision to cancel registration – whether remedial action taken – prospects of success – consequences for Applicant – public interest – consequences for ASQA – whether review would be rendered nugatory – interests of students – principles of good government – public interest best served by not allowing the Applicant to continue to operate – stay application refused
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 41(2), 42A(5)
National Vocational Education and Training Regulator Act 2011 (Cth) s 2A
CASES
Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 181 FCR 130
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307
Federal Commissioner of Taxation v Myer Emporium Ltd (1986) 160 CLR 220
Guse v Comcare (1997) 49 ALD 288
McGrath v Inspector-General in Bankruptcy (2011) AATA 27
Re Dart and Director-General of Social Services (1982) 4 ALD 553
Re Secretary, Department of Employment and Workplace Relations and Arthur Anastasiadis [2007] AATA 1065
Re Scott and Australian Securities and Investment Commission (2009) 51 AAR 114
Re VBJ and Australian Prudential Regulation Authority (2005) 87 ALD 747
Rust-Oleum Australia Pty Ltd and Australian Pesticides & Veterinary Medicines Authority [2017] AATA 298.
Windshuttle v Commissioner of Taxation [1993] 46 FCR 235
SECONDARY MATERIALS
Standards for Registered Training Organisations 2015
REASONS FOR DECISION
Chris Puplick AM, Senior Member
5 November 2018

The Institute of Training Pty Ltd (the Applicant) seeks a Stay of a decision made by the Australian Skills Quality Authority (ASQA) on 8 August 2018 (and notified to the Applicant on 17 August 2018) to cancel the Applicant’s registration as a Registered Training Organisation (RTO) under provisions of the National Vocational Education and Training Regulator Act 2011 (Cth) (the NVR Act).
BACKGROUND
The Applicant was initially granted registration as an RTO on 17 February 2010 by the NSW registration authority. With the establishment of a national registration scheme, it came under the jurisdiction of ASQA, as the national regulator, on 1 July 2011. Its registration was for a period expiring on 17 February 2020.
On or around 13 June 2015 the RTO was purchased by its current owner (and sole company Director) Mr Khadar Roude, from its previous owner Mr Warren Jack.[1]
[1] Statement of Khadar Roude dated 30 October 2018 at [3].
The Applicant offers courses primarily related to the building and construction industries and micro-business operations.[2]
[2] Respondent’s Submissions in relation to Stay (10 October 2018) at [5].
On 28 September 2017 ASQA took action, following receipt of a number of complaints about the Applicant from NSW authorities, to conduct a desk-based audit of its operations. As part of this process it required the Applicant to provide it with certain information.
[The Tribunal does not propose to address the issue of these complaints within this stay application consideration nor give them any weight in its deliberations.]
The Applicant complied with this request and with a subsequent request for further information.[3]
[3] First request 28 September 2017, responded to 6 October 2017. Second request dated 12 October 2017 responded to by 27 November 2017.
Consideration of this material resulted in ASQA undertaking a compliance monitoring audit based on a sample of four of the 13 certificate level and 6 competency units being offered by the Applicant. The audit took place on 10 May 2018.
The result of this audit was that ASQA determined that the Applicant failed to comply with clauses 1.8 and 3.1 of the Standards for Registered Training Organisations 2015 (the Standards). All RTOs are required to comply with these Standards and it is ASQA’s statutory responsibility to monitor this compliance.
On 12 June 2018 ASQA notified the Applicant of the results of the audit and its findings of non-compliance. It advised the Applicant of its intention to cancel its RTO registration and invited the Applicant to submit representations in response. The Applicant did so on 10 July 2018 within the time framework requested by ASQA.
ASQA considered the Applicant’s response and on 8 August 2018 made a decision to proceed with the cancellation. It notified the Applicant of this decision on 17 August 2018 and provided it with a copy of the Audit Report.[4] The outcome of this notification was that the Applicant’s registration would cease as from 21 September 2018.
[4] Tribunal Documents at [T18].
On 6 September 2018 the Applicant (through their solicitors) made an application to this Tribunal for a review of that decision. At the same time it made an application for a stay of the 8 August 2018 decision. This was initially opposed by ASQA.
However after negotiations between the parties the purported cancellation date was extended to 12 October 2018, the date then scheduled for an interlocutory hearing in this Tribunal. Prior to that date the Applicant sought an adjournment of the hearing and on 11 October 2018 the Tribunal vacated the original hearing date and adjourned the proceedings to 2 November 2018 and a stay of the 8 August 2018 order was granted until the matter came before the Tribunal.
The matter of the (continuing) stay application came before the Tribunal for determination on 2 November 2018.
ASQA’S APPLICATION FOR DISMISSAL
On the day of the hearing ASQA made a submission to the Tribunal seeking the dismissal of all proceedings in this matter.
The basis of this application was that the Applicant had failed to comply with Directions given by the Tribunal on 12 October 2018. On that date the Tribunal granted an initial stay of the ASQA order until the Tribunal hearing on 2 November 2018. In making the Stay Order the Tribunal imposed a number of conditions on the Applicant; these included the requirement that:
“Any evidence relied upon by the Applicant for the interlocutory hearing of the Applicant’s Stay Application is provided no later than one week prior to the relisted hearing date.”[5]
[5] Order of the Tribunal dated 12 October 2018 at Annexure A. Paragraph (2).
The date of the hearing was fixed at that time for Friday 2 November, the date specified in the Stay Order and otherwise notified to both parties. To be compliant with the Order of the Tribunal the Applicant had to file material upon which it sought to rely at the interlocutory hearing by no later than Friday 26 October 2018.
It failed to do so. The Statement by Mr Khadar Roude was dated 30 October 2018 as was the Statement of Ms Nancy Pavlovic. The Applicant’s Submissions in Support of Stay Application (submitted by Counsel for the Applicant) was dated 1 November 2018. All three documents were submitted out of time. This is not a matter in which the issue is the date of receipt of documents which might have been created at an earlier date. Plainly all three documents were created at a date outside the date upon which the Tribunal had ordered their production.
ASQA sought dismissal of the proceedings on the basis of this non-compliance.
The relevant section of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) is section 42A(5). It provides:
If an applicant for a review of a decision fails within a reasonable time:
(a) to proceed with the application; or
(b) to comply with a direction by the Tribunal in relation to the application;
the Tribunal may dismiss the application without proceeding to review the decision.
There is some authority to guide the Tribunal in determining such applications.
In Guse v Comcare, Burchett J in the Federal Court stated in relation to s 42A(5):
“This is plainly a valuable discretionary power. But para (b) does involve denying an applicant a hearing of the merits of his application. That should be done very sparingly, and only, I think, as a decision of last resort. Particularly is this so in a case where the genuineness of the claim is not in dispute.
A fundamental issue in the present case is whether the tribunal could decide in advance, when giving a direction, that non-compliance within a limited period would, not might, involve dismissal of the application pursuant to s 42A(5)(b). In my opinion, that is not what the provision intends. A direction is, of its nature, subject to variation to meet the exigencies of the proceeding. Section 33(3) makes this explicit. If the direction “may be varied or revoked at any time by any member empowered … to give such a direction in relation to the proceeding at that time”, how can the member giving the direction treat it as immutable, and any failure of compliance as fatal? The very nature of the discretion seems to me to demand that the tribunal consider, after the default has occurred, whether in the circumstances then obtaining, “a reasonable time” has elapsed, and whether the proper remedy is dismissal of the application, or the taking of some other course, such as adjourning the proceeding or making some other order to secure compliance.
Furthermore, s 42A(5)(b) cannot, consistently with the observance of the principle of natural justice, be implemented upon an ex parte statement that an applicant has not complied with a direction, without giving the applicant any opportunity to explain, or advance reasons why the matter should nevertheless proceed.
…………..
To construe s 42A(5) as requiring an applicant to be given an adequate opportunity to be heard, before the proceeding may be dismissed, is to construe it in a manner consistent with the principles laid down by the High Court in Commissioner of Police v Tanos (1958) 98 CLR 383 at 395–6”.[6]
[6] Guse v Comcare (1997) 49 ALD 288 at [291] and [292].
The Tribunal does note that Mr Guse was an unrepresented litigant in his proceedings whereas in this instance the Applicant has had access to legal advice at the level of Counsel.
The point about the sparing use of this discretionary power was also made in McGrath v Inspector-General in Bankruptcy in the following terms:
“DRA does not dispute that the s 42A(5) discretion has been enlivened. It submits, correctly in my view, that the discretion, in common with any discretion to summarily terminate proceedings, ought be exercised sparingly and only in the clearest of cases”.[7]
[7] (2011) AATA 27 at [20] per Deputy President Hack SC.
In the light of these authorities, the Tribunal did not proceed to a summary dismissal of the proceedings, but rather afforded the Applicant the opportunity to explain the delay in complying with the Order of the Tribunal.
In the hearing before the Tribunal the Applicant advised that the delay of two business days was occasioned by Mr Roude, who is the director and sole shareholder of the company, being overseas due to illness in his family which, unfortunately, resulted in a number of family deaths while he was overseas or shortly thereafter. Although not supported by Affidavit or any other form of evidence, the Tribunal accepts the assurances of Counsel that this was the case. It also accepted Counsels’ point that the Submissions in support of the Stay application do not constitute evidence required by the Tribunal’s order to be produced by 26 October.
Having found that the Applicant’s reasons for the short delay were credible and exculpatory, the Tribunal herewith rejects the Application for Dismissal of these proceedings under section 42A(5) of the AAT Act.
With this matter determined, the Tribunal returns to consideration of the submissions on the stay application.
THE ASQA FINDINGS/APPLICANT’S RESPONSE
It is not necessary, indeed it is not proper, for the Tribunal to explore in any detail the matters of substance which are contested between the parties.
The Tribunal has no role, in a stay application, in seeking to determine in any detail the merits of any case which might be argued at a later stage in appeal proceedings.[8]
[8] Windshuttle v Commissioner of Taxation [1993] 46 FCR 235.
As the Tribunal stated in Anastasiadis:
“When considering the prospects of success of an applicant in the course of a Stay application, it is not the role of the Tribunal to conduct a preliminary hearing of the substantive matter based on the evidence given in the SSAT”.[9]
[9] Re Secretary, Department of Employment and Workplace Relations and Arthur Anastasiadis [2007] AATA 1065 at [10].
Similarly as (then) Tribunal President Davies made clear in Dart:
“It is not convenient or appropriate that on this application for a stay there should be any preliminary trial of the issues that will ultimately have to be considered by the Tribunal”.[10]
[10] Re Dart and Director-General of Social Services(1982) 4 ALD 553 at 555.
However for the purposes of the hearing of the stay application it is necessary to consider briefly what were the ASQA findings and what have been the Applicant’s initial response to them.
In terms of the audit, ASQA concluded that the Applicant was non-compliant with clauses 1.8 and 3.1 of the Standards. Specifically:
1.It had failed to conduct adequate assessment, including recognition of prior learning assessments, of students to ensure they are competent against all the requirements of the training products.
2.It failed to ensure that appropriate certification was issued only to qualified learners.
3.It had failed to evidence that it had undertaken sufficient remedial action to bring itself into a compliant position.
In response, the Applicant submitted that it had been developing a plan to address the non-compliance issues and believed that “remedial action where necessary, and where reasonably practicable, (they) can be provided by April 2019”.[11] In addition, a consultant had been engaged on 5 October 2018 to review the Applicant’s policies and practices.[12]
[11] Statement of Khadar Roude dated 30 October 2018 at [37].
[12] Ms Nancy Pavlovic of the Pavlov Group.
A statement from the engaged consultant was provided to the Tribunal in which she concluded:
“I have reviewed IOT’s policies and procedures and my preliminary view is that IOT’s policies and procedures meet the Standards for Registered Training Organisations 2015 however the document management processes within the organisation require a more robust framework, staff require professional development and there needs to be a period of independent oversight to ensure IOT’s policies and procedures are fully implemented moving forward”.[13]
[13] Statement of Nancy Pavlovic dated 30 October 2018 at [8].
THE APPLICANT’S GROUNDS FOR A STAY
In their formal application for a stay the Applicant listed their grounds as follows:
(a)Current students would be affected by the stay and their current studies interrupted;
(b)Three full-time staff and 18 independent contractors would have their employment terminated;
(c)The Applicant would face liquidation if forced to cease operating;
(d)The Applicant is addressing the non-compliance issues and is committed to taking rectification and remedial action.
There is some issue regarding the numbers of students enrolled. ASQA states that as of the date of the audit, May 2018, there were 28 students enrolled[14], whereas Mr Roude states that as of the present there are 80.[15] In the Tribunal’s hearing the Applicant confirmed that the correct number was 80 and the Respondent advised that the number of 28 was based on information supplied to it by the Applicant at the date of the Audit, on or around 10 May 2018.
[14] Respondent’s Submissions in relation to Stay (10 October 2018) at [8]; ASQA Audit Report (11 May 2018) at page [3].
[15] Statement of Khadar Roude dated 30 October 2018 at [7] and [21].
ASQA’S OPPOSITION TO A STAY
ASQA opposed the stay, primarily on the following grounds:
(a)There is a need to protect the public where inappropriate qualifications are issued, especially in some areas of the building and construction industries where safety issues arise;
(b)There is a need to protect students whose qualifications might be called into question or not recognised as a result of non-compliance by the training provider;
(c)There is a wider public interest in ensuring the integrity of the national vocational education system by requiring all RTOs to meet the national Standards.
STAY APPLICATIONS: PRINCIPLES
The right of any party to obtain a stay of proceedings is not automatic simply upon the asking:
“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”.[16]
[16] Re Secretary, Department of Employment and Workplace Relations and Arthur Anastasiadis [2007] AATA 1065 at [6].
There are a number of authorities which have set out the range of considerations which the Tribunal should take into account when determining applications for stays.
In Re Scottand Australian Securities and Investment Commission[17] then AAT President Downes set out the range of matters which the AAT should however assess in considering stay applications. These were (in summary):
(a)Prospects of success
(b)Consequences for the Applicant of refusal
(c)Public interest
(d)Consequences for the Respondent in carrying out its functions depending on whether the stay was issued or not
(e)Whether the review would be nugatory if the stay not granted
(f)Other matters considered relevant.
[17] (2009) 51 AAR 114 at [4].
Section 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) also enjoins the Tribunal to consider “the interests of any persons who may be affected by the review”. This clearly encompasses the staff and students of this Applicant. However it also includes the employers of the Applicant’s graduates and the members of the public for whom they provide services.[18]
[18] Re VBJ and Australian Prudential Regulation Authority (2005) 87 ALD 747 at [42].
The Tribunal notes that there is a more recent decision by Deputy President Forgie (Rust-Oleum Australia Pty Ltd and Australian Pesticides & Veterinary Medicines Authority[19]) in which, on the basis of recent Federal Court authority, the question of whether or not (or to what extent) the Tribunal should consider “prospects of success”, is called into question. Deputy President Forgie’s most recent decision suggests that “Prospects of success have no place” in the considerations of the Tribunal.[20] However the Deputy President does note that if there is absolutely no prospect of success, this is a matter which should influence the considerations of the Tribunal.[21]
Considerations: The tests in Scott
[19] [2017] AATA 298.
[20] Ibid at [36].
[21] Ibid at [fn 30].
The Tribunal makes no attempt to reconcile the differing opinions expressed in Scott and Rust-Oleum although it believes that it cannot be blind to some consideration of the prospects of success when evaluated in the light of the steps taken, or not taken, by the Applicant to address findings of non-compliance.
Response to ASQA findings

The Tribunal cannot but conclude, from the material before it, that the response of the Applicant to the ASQA findings does not, prima facie, demonstrate that it is seized of any sense of urgency to address remediation requirements.
The statements of Mr Roude (see above) appear equivocal. There was a considerable time elapsing between the date of the non-compliance notification (17 August 2018) and the appointment of an independent consultant (5 October 2018). Her report, if anything, indicates not only that considerable work needs to be done to become compliant, but that current management is unlikely to be in a position to take leadership of this process, so much so that some “independent oversight” would be required.
There is no evidence from the Applicant that, apart from the engagement of the consultant, any positive remedial steps have been taken, and although there is a proffered commitment to do so, a timetable is suggested for this which stretches out to April 2019.
Prospects of Success
Despite the warnings of Deputy President Forgie, the Tribunal feels bound to give at least some consideration to this issue.
In their Submissions the Applicant argues that it has good prospects of success at a final hearing. In support of this proposition the Applicant states:
“While the Institute of Training may have been non-compliant with some of the Standards for Registered Training Organisations 2015 at the time of ASQA’s decision, it is now taking effective steps to remedy those non-compliances”.[22]
[22] Applicant’s Submissions in Support of Stay Application (1 November 2018) at [13].
The evidence it advances in support of this proposition is that the Applicant has engaged Ms Nancy Pavlovic of the Pavlov Group and paid over $28,000 in fees. The Applicant asserts that achievement of compliance with the Standards “is being achieved by her company’s engagement”.[23]
[23] Ibid at [15].
The Applicant also puts to the Tribunal that:
“The Standards contain eight broad standards, each containing several criteria which a registered training organisation is required to meet. Of these many criteria, ASQA only found the Institute of Training to be non-compliant with two”.[24]
[24] Ibid at [17].
However it seems to the Tribunal that it is not the number of standards of non-compliance which is the issue, but rather the centrality of those Standards to the integrity of the system as a whole. Standard 1.8 relates to compliant assessment systems and Standard 3.1 to issuing certificates only to properly qualified persons. Those seem, at least to the Tribunal, to be somewhat fundamental.
Although it does not have to, and indeed should not, determine the prospect of success of this application on final hearing, the Tribunal does not accord it the same prospect as that urged upon it by the Applicant.
Consequences for the Applicant
The Tribunal accepts that there would be significant impact upon the Applicant and it has no reason to doubt its submission that staff would become unemployed and that it would suffer financial hardship. It accepts the material put to it in Mr Roude’s Statement outlining these matters. Whether or not this results in the “liquidation” of the Applicant is another matter as the Tribunal has no indication of what other or related business interests might constitute part of Mr Roude’s portfolio, given that he is the sole shareholder.
The Applicant draws the Tribunal’s attention to a further issue of the potential reputational damage which might be suffered by Mr Roude who, it states has had some 25 years’ experience in this field.[25] Again, the Tribunal is mindful of that possibility, although it somewhat offsets this claim by observing that with 25 years’ experience, Mr Roude might have been expected not to find his operations to be non-compliant with Standards with which he must have been quite familiar and whose rectification he might have been able to address without the need of external consultancies.
[25] Ibid at [9].
Public Interest
Questions of the public interest are important and it is vital that it be protected both in terms of the protection of the rights and future of students and the integrity of the VET system as a whole.
ASQA notes that there are issues of personal and public safety in terms of high risk qualifications where inadequate training or improper certification would be dangerous. This includes some areas such as working at heights, forklift truck driving, ability to identify asbestos or lead paints, first aid provision, dogging and waterproofing.
In the absence of immediate remediation action taken to address non-compliance issues, it must be concluded that there is a public interest in not allowing potentially dangerous situations to continue or develop.
Consequences for ASQA as the Respondent
The Applicant asserts that, “ASQA’s interests are unlikely to be greatly affected by the grant of a stay” and that its powers to regulate the Applicant “will not be adversely affected by the grant of a stay”.[26] These of course are the very powers which it is seeking to enliven by this registration cancellation.
[26] Applicant’s Submissions in Support of Stay Application (1 November 2018) at [10].
However, the authority of ASQA should be given considerable respect in such proceedings as it is the essential guardian of the integrity of the VET regulation system. The Tribunal must have regard to the fundamental elements of the regulatory scheme in assessing stay decisions.[27] In this instance section 2A of the NVR Act includes among its objects national consistency in regulation and the protection of students.
[27] ASIC v AAT [2009] 181 FCR 130 at [53].
If ASQA’s decisions are to be either stayed (or in other instances, set aside) then the Tribunal believes that it is incumbent upon any Applicant to demonstrate that those “special circumstances” referred to in Anastasiadis have been established.
Rendering review nugatory
The High Court said in Federal Commissioner of Taxation v Myer Emporium Ltd, that a decision may be rendered nugatory:
“… where for whatever reason, there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed…”[28]
[28] (1986) 160 CLR 220 at [223].
Prima facie it would appear that were a stay not granted, the Applicant would, by the time of the hearing on the merits, be unlikely to be able to restore itself to its previous status and position, having presumably lost both students and teachers.
The Tribunal understands that this would impose great hardship on the Applicant and there is a possibility that they would no longer be able to actually defend their position at any such merits hearing. Principles of fairness and natural justice would suggest that taking a decision which renders the Applicant’s potential for merits review nugatory should only occur if there are compelling and overriding reasons of public interest so to do.
Other matters
(a)The Interests of the Students
The Tribunal has recognised that there may be negative consequences for Mr Roude and his staff if the stay were not to be granted, however it also feels it important to canvass the question of what might be the impact of any decision, one way or the other, upon the Institute’s students.
The Applicant asserts that:
1.Students, particularly those in Certificate III courses would be badly impacted, they would find it difficult (especially in the Christmas/New Year period) to find other providers to take them on, especially in relation to matters of comparable location and fees; and
2.There is no guarantee that any receiving RTO would provide such students with credit for the training they have already completed.[29]
[29] Applicant’s Submissions in Support of Stay Application (1 November 2018) at [6] and [7].
By contrast, ASQA asserts that:
1.It has a responsibility to protect students who are enrolled with RTOs and have paid their fees from finding that their fees are lost and their training “de-valued through inadequate training and education” and because a provider is “unable to refund them in an appropriate case”;
2.Current students would be negatively affected if a Stay is granted because “there can be no certainty that these students will have obtained competency in their respective qualifications nor that they will be able to operate safely in the workplace, given the Applicant’s non-compliances”;
3.There is a danger that employers will not recognise the qualifications of students graduated by the Applicant and that they will be thus less able to obtain employment;
4.There is a presumption that the students in question will be able to find “suitable alternative training”.[30]
[30] Respondent’s Submissions in relation to Stay at [22], [32], [33], [34].
The Tribunal accepts the Applicant’s point that the Respondent’s assumptions about alternative placement, especially at this time of year, are highly speculative. However it sees considerable merit in ASQA’s other assertions and notes that lack of confidence displayed by the Applicant in conceding that its students’ prior learning qualifications may not be accepted by other institutions.
(b)The principles of good government
It is important to note that the Administrative Appeals Tribunal, apart from exercising jurisdiction under the relevant provisions of specific statutes, and not having a general jurisdiction across all Commonwealth administrative decisions, is part of an administrative law system which should be conducted by reference to the “standards of good government”.[31] It is an:
“instrument of government administration and designed to act where decisions have been made in the course of government administration but which are in the view of the Tribunal not acceptable when tested against the requirements of good government”.[32]
[31] Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 at [334] per Smithers J.
[32] Ibid at [335].
“Good government” includes both the protection of the public interest and protecting the integrity of the national vocational education system.
Consideration of Respective Cases
As noted above, the Tribunal has rejected the Respondent’s application for the dismissal of these proceedings for non-compliance with the Order of the Tribunal on 12 October 2018.
As to the matters of the Stay application itself, the Tribunal has sought to give due regard to each of the tests established in Scott. Not surprisingly, the result of this leads the Tribunal into something of a “calculus” where some of the tests count in favour of granting the stay and some against.
Of those six tests, two: the consequences for the Applicant and the rendering nugatory of their right of merits review, weigh in favour of the Applicant. Each of them weighs heavily in that direction.
The test of prospect of success seems to the Tribunal to be finely balanced, but for reasons which will be expanded below, the Tribunal finds that it weighs marginally against the Applicant.
Three of the tests: the public interest, the consequences for the Respondent and other matters (primarily the interests of students and the protection of the public from a safety point of view) weigh in favour of the Respondent’s position.
The most difficult issue for the Applicant in this matter is, as pointed out by ASQA, its failure to take any immediate remedial action once issues of non-compliance had been drawn to its attention in June 2018.
The Applicant did engage a number of consultants who apparently provided some staff training and web design[33] advice prior to the appointment of Ms Pavlovic in October, just a few weeks before the Tribunal hearing.
[33] Statement of Khadar Roude dated 30 October 2018 at Attachment KR-1.
However nothing seems to have occurred. No steps were taken, immediately upon receipt of the Audit findings to address the issue of non-compliance with the two identified Standards. Students were continuing to be assessed on a basis that the Audit report had found deficient and there appears to have been no retrospective examination of matters such as the issuing of qualifications which should have been addressed. There is no evidence that students were contacted or qualifications checked going back over the previous six months – that is a period in which the current administration was in place and post-dates any perceived failings or shortcomings on behalf of the previous owner.
Even the appointment of Ms Pavlovic fails to illustrate that any customised programme of rectification has been developed, or that any contemporary timetable for implementation (other than a completion date of April 2019) has been proposed.
In her submission to the Tribunal hearing, Counsel for the Applicant stated: “It would have been better if action had been taken more quickly” and she conceded that “strictly speaking” no remedial action had commenced.
This failure, in the opinion of the Tribunal has prejudiced the position of students who continued under the aegis of the Applicant after June 2018 in an environment which was non-compliant with the Standards. There is a distinct possibility that this would continue to be the case up until April 2019 which is the proposed date for the Applicant to achieve fully compliant status.
ASQA made the point that when the Applicant asserts that Mr Roude is an educational service provider with 25 years’ experience in this field, it was entitled to expect that more evidence of genuine remedial action should have been forthcoming.
It is primarily on this basis that the Tribunal agrees with the ASQA submission that the prospects of success for the Applicant at a full hearing on the merits are less than substantial.
ASQA also makes the point that there is a potential risk to the public in that the courses being offered are designed to allow students to obtain licences in various parts of the building and construction industry where adherence to safety standards are vital both for employees, customers and the general public.[34]
[34] Respondent’s Submissions in Relation to Stay at [41], [42].
The Tribunal’s decision finally turns upon what it considers the one factor which tips the scales against the Applicant, namely the public interest. Without entering the labyrinth of definitions and discussions of what precisely constitutes the public interest, in this instance the Tribunal sees it as having the following elements (inter alia):
·Ensuring that students are properly assessed and certified according to the Standards under the NVR Act;
·Ensuring that RTOs are compliant with the Standards and take immediate and effective remedial action when issues of non-compliance are identified;
·Protecting students, employers, customers and members of the general public from danger by ensuring that Standards are adhered to;
·Maintaining the integrity of the VET system in Australia.
In the view of the Tribunal, the public interest is best served by not allowing the Applicant to continue to operate, as it is, in a way which is non-compliant with the Standards and in the absence of immediate and effective remedial action having commenced.
DECISION
The application for a stay of the ASQA decision of 8 August 2018 is refused.

I certify that the preceding 88 (eighty-eight) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

.........................[sgd]...........................................
Associate
Dated: 5 November 2018

Date(s) of hearing: 2 November 2018

Counsel for the Applicant: Dr J Lucy

Solicitors for the Applicant: Gorval Lynch

Solicitors for the Respondent: L McDermott, Australian Skills Quality Authority

[2018] AATA 4127

5 November 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Stay of Proceedings

Procedural Fairness

Remedies

Standing

Statutory Construction

Date(s) of hearing:	2 November 2018
Counsel for the Applicant:	Dr J Lucy
Solicitors for the Applicant:	Gorval Lynch
Solicitors for the Respondent:	L McDermott, Australian Skills Quality Authority