Mantra Training and Development Pty Ltd and Australian Skills Quality Authority
[2018] AATA 4586
•12 December 2018
Mantra Training and Development Pty Ltd and Australian Skills Quality Authority [2018] AATA 4586 (12 December 2018)
Division:GENERAL DIVISION
File Number(s): 2018/5416
Re:Mantra Training and Development Pty Ltd
APPLICANT
AndAustralian Skills Quality Authority
RESPONDENT
DECISION
Tribunal:Mark Hyman, Member
Date:12 December 2018
Place:Canberra
The conditions sought to be imposed by the respondent are refused.
Liberty to apply is preserved
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Mark Hyman, Member
Catchwords
PRACTICE AND PROCEDURE – stay – proposal to attach conditions to stay previously granted – consequences for the public and students in the absence of the conditions sought – consequences for the applicant if the conditions were imposed – whether the tribunal has the power to grant the conditions sought – tribunal has the power – competing considerations best addressed through an expedited hearing – whether the matter might benefit from alternative dispute resolution
Legislation
Administrative Appeals Tribunal Act 1975, ss 37, 41, Division 3
National Vocational Education and Training Regulator Act 2011, ss 2A, 31, 199, 200, 201, 202, 203
Cases
ASIC v AAT [2009] FCAFC 185
Scott and ASIC [2009] AATA 798
REASONS FOR DECISION
Mark Hyman, Member
12 December 2018
This decision is about whether conditions can and should be attached to a stay already granted to Mantra Training and Development Pty Ltd (Mantra), the applicant, in respect of the decision under review taken by the Australian Skills Quality Authority (ASQA), the respondent, to not allow a shorter period to Mantra to make an application for renewal of its registration as a Registered Training Organisation (RTO) under the National Vocational Education and Training Regulator Act 2011 (the NVR Act). It also covers the question of whether this matter may be amenable to conciliation or another alternative dispute resolution process.
This is one of two matters in which Mantra is the applicant. The other is an application for review of a decision by ASQA to refuse to extend Mantra’s scope of registration as an RTO by the addition of a qualification in training and assessment. That refusal was made on 28 February 2018, and the review is matter number 2018/2442. Normal tribunal processes would have the two matters heard together. For reasons explained below that course of action will not be followed in this instance.
Mantra, when applying for review of the decision in matter 2018/5416, also sought a stay of ASQA’s decision, and that application was not opposed. Under section 41 of the Administrative Appeals Tribunal Act 1975 (the AAT Act), a decision that is under review by the tribunal will normally continue to have effect while the review proceeds, but the section also provides that under certain circumstances a stay may be granted, preventing the decision from operating. On 26 September 2018, in response to Mantra’s application and in light of written advice from ASQA not opposing, I granted a stay.
On 22 October ASQA submitted documents for the hearing in respect of this matter, and also sought that matters 2018/2442 and 2018/5416 should be delinked and heard separately rather than together. ASQA also advised that it was seeking conditions to be attached to and limit the operation of the stay; that it did not see any purpose in having the matter proceed to conciliation but would prefer to move to an expedited hearing; and asked that no further listings in matter 2018/2442 should be made until matter 2018/5416 had been decided.
These matters were considered at a telephone directions hearing on 25 October 2018. Matter 2018/5416 relates to a decision by ASQA that would have the effect of deregistering Mantra as an RTO. It would plainly serve little purpose to hear a matter regarding the extension of Mantra’s registration (in matter 2018/2442) when its registration as a whole is now the subject of review before the tribunal. Accordingly, I ruled that the two matters should be delinked and that no further listings in matter 2018/2442 should be made until matter 2018/5416 was decided, as ASQA had sought.
ASQA sought to attach conditions to the stay that would have the effect of preventing Mantra from taking any enrolments, issuing any qualifications or undertaking any marketing or advertising of its educational and training services, pending the outcome of the review. The power to attach conditions to a stay as set out in section 41 of the AAT Act is broad but nevertheless limited in various ways, and there was a question whether that power extended to the conditions as sought by ASQA. Further, ASQA provided detail of the proposed conditions only on 23 October 2018, two days before the directions hearing, leaving little time for Mantra to prepare a response. For those reasons, at the directions hearing I asked ASQA to provide submissions in support of the proposed conditions, and for Mantra to provide submissions in response. I now have those submissions.
ASQA also urged that the matter should proceed to an expedited hearing, without proceeding to a conciliation (or, by implication, any other form of alternative dispute resolution). Mantra believes there might be merit in a conciliation. I asked that the submissions also deal with that issue.
In deciding the present matter I have available to me the tribunal documents submitted under section 37 of the AAT Act (the “T-documents”) in respect of matter 2018/5416 as well as various documents provided by the parties in the lead up to the directions hearing.
ISSUES
The issues before the tribunal in this matter are:
·whether conditions should be attached to the stay preventing Mantra from advertising and marketing its services and enrolling new students; and
·whether the matter should be referred to alternative dispute resolution.
ASQA’s submission states that its application of 23 October 2018 sought an expedited hearing; a reconsideration of the stay; and for three conditions to be attached to the stay. The email in which ASQA sought conditions on the stay does not explicitly seek a reconsideration of the stay, nor does it ask for an expedited hearing; rather it is concerned with the questions of delinking the present matter from matter 2018/2442, the imposition of conditions on the stay and whether or not the present matter should be put to conciliation. It appears from the submission that ASQA is no longer seeking the reconsideration of the stay, and now presses only two of the three conditions sought at the earlier directions hearing, namely that Mantra not be allowed to advertise or market its education and training services, and not be allowed to enrol new students.
THE LEGISLATION
The NVR Act establishes a framework for the provision of vocational education and training (VET) in Australia. Section 2A sets out the objects of the Act, which include protecting and enhancing quality, flexibility and innovation in VET and Australia’s reputation for VET nationally and internationally; encouraging and promoting a VET system to meet Australia’s need for a highly educated and skilled population; and protecting students undertaking or proposing to undertake VET in Australia.
Part 2 of the Act sets out the requirements for registration of RTOs. Section 31 deals specifically with the renewal of registration. It reads as follows:
31 Renewal of registration
(1) The National VET Regulator may renew an NVR registered training organisation’s registration under section 17 if the organisation makes an application for renewal:
(a) at least 90 days before the day the organisation’s registration expires; or
(b) within such shorter period as the Regulator allows.
(2) An application must be accompanied by the application fee determined by the Minister, by legislative instrument, under section 232.
(3) An NVR registered training organisation’s registration is taken to continue until the organisation’s application is decided.
(4) An NVR registered training organisation may apply for renewal of registration during a period when all or part of its scope of registration is suspended.
Section 199 of the NVR Act sets out those decisions of the National VET regulator which are reviewable decisions. Among the reviewable decisions listed in the section is a decision under section 31 of the NVR Act not allowing a shorter period for making an application for renewal of an RTO’s registration. Under sections 200 to 203 a person affected by a reviewable decision may seek review; reviewable decisions are internally reviewed if taken by the staff of ASQA; decisions taken by a commissioner and decisions that have been internally reviewed are subject to review by this tribunal.
Subsection 41(1) of the AAT Act provides that, subject to the provisions that follow, applying to the tribunal for review of a decision does not affect the operation of that decision. Subsection 41(2) allows the tribunal, on application by a party to a proceeding, to make orders staying “or otherwise affecting the operation or implementation of the decision” to which the proceedings relate, where the tribunal is of the opinion that it is desirable to do so, after taking into account the interests of those affected. Such a decision is to be taken “as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and the determination of the application for review”. Subsequent subsections allow an order made under subsection (2) to be varied or revoked, provided all those with an interest have had the opportunity of making submissions (unless it would not be practicable for that opportunity to be given). Subsection 41(6) relevantly provides that an order under subsection (2) is subject to such conditions as specified in the order.
Division 3 of the AAT Act provides for alternative dispute resolution (ADR). Section 34A provides that a decision that a matter should be referred to ADR is at the discretion of the President. The discretion is in very broad terms (“the President may direct that the proceeding … be referred to an alternative dispute resolution process”). The President’s discretion to refer matters to alternative dispute resolution has been delegated to deputy presidents and senior members of the tribunal.
THE SUBMISSIONS OF THE PARTIES
ASQA argues that the ability of Mantra to continue operations depends on whether or not Mantra is successful in two decision processes, namely being allowed to lodge an application in the shorter period provided for in section 31 of the NVR Act; and then succeeding in renewing registration. Mantra’s future as an RTO is therefore insecure and tenuous. ASQA further contends that the tribunal has the power to make the orders it seeks, taking subsections 41(2) and 41(6) into account; and in doing so must consider the interests affected by the decision, including, in this instance, the interests of students and the general public. In the absence of the orders sought, for example, students might enrol in courses that they subsequently cannot continue if Mantra is unsuccessful; and such an eventuality would reflect poorly on the VET sector as a whole. The proposed conditions are necessary to avoid that outcome, but the best way to resolve the issue, in ASQA’s contention, is through an expedited hearing.
ASQA opposes the holding of a conciliation, arguing that the decision is a bilateral one: either a shorter time for applying for renewal of registration is granted or it is not. In the absence of any conceivable middle ground, no compromise seems possible through a conciliation process.
The submission from Mantra was evidently prepared without the benefit of legal advice. It suggests that a conciliation might be helpful in that ASQA has taken a decision on the basis of information that in Mantra’s view is inaccurate; but it makes no argument that relates to the power of the tribunal to make the orders sought. Mantra points to another company that has received treatment that is regarded as more generous than that afforded to Mantra; but that has no bearing on the merits of Mantra’s case and is not something I can take into account. It appears that Mantra is agreeable to an expedited hearing.
CONSIDERATION
The decision not to allow a shorter period for Mantra to make an application for renewal of its registration was made under section 31 of the NVR Act; it is a reviewable decision under section 199 of the NVR Act. The letter at T14 advising Mantra of the decision states that the decision was made by the Chief Commissioner of ASQA, and under subsection 203(2) of the NVR Act the decision is therefore reviewable by this tribunal. The effect of the stay granted on 26 September 2018 is that Mantra’s registration continues pending the review of ASQA’s decision.
A stay may be granted where the tribunal “is of the opinion that it is desirable to do so”, taking into account relevant interests, “for the purpose of securing the effectiveness of the hearing and determination of the application for review” (subsection 41(2) of the AAT Act). In Scott and ASIC [2009] AATA 798 Downes J, then President of the tribunal, set out (at [4]) a non-exhaustive list of considerations which go to the question of whether to grant a stay:
1. The prospects of success.
2. The consequence for the applicant of the refusal of a stay.
3. The public interest.
4. The consequences for the respondent in carrying out its functions depending upon whether a stay is granted or not.
5. Whether the application for review would be rendered nugatory if a stay were not granted.
6. Other matters that are relevant … [including the time that is likely to elapse before the matter is heard].
The stay application by Mantra was not opposed by ASQA, and the stay was granted on that basis, taking into account especially the second and fifth of the above points: the consequences of refusing the stay would be that Mantra would be unable to continue operations, and the application for review would indeed be rendered nugatory as a consequence. The submissions that ASQA now makes suggests that the conditions sought would balance those considerations with regard in particular to the third and fourth of the above points: as noted in ASQA’s submission, there are consequences for students, for the general public and therefore for ASQA in the carrying out of its functions if Mantra is allowed to continue operations but is then unsuccessful in the review.
The question of the tribunal’s powers to impose the conditions sought only arises because of the apparently narrow ambit of the power exercised by ASQA in the decision under review: it is a decision not to allow a shorter period in which to receive an application. But ASQA points out, reasonably, that the effect of the decision is the same as the effect of a decision to deny renewal of registration. ASQA’s submission takes me, helpfully, to ASIC v AAT [2009] FCAFC 185 (ASIC v AAT), where the full Federal Court noted that the interests of those affected by a review, which are to be taken into account in a stay decision, will be affected by the nature of the decision under review, in accordance with the statutory scheme under which the decision was made. The effect of the decision in this instance, in the absence of a stay, would be to bring Mantra’s registration, and therefore its education and training services, to an end; the effect of the stay without the proposed conditions would be to allow students to enrol in courses that they might not be able to complete. The interests affected will indeed include those of Mantra, its students and potential students, the general public, and ASQA itself; and there is no question that the tribunal indeed has the power to impose the conditions that ASQA seeks.
I am therefore faced with competing outcomes neither of which commends itself: on the one hand imposing the conditions sought by ASQA could have the effect of putting Mantra out of business, which would render the review nugatory and would reinstate the outcome that the stay was intended to prevent; on the other hand not imposing the conditions could allow students to enrol fruitlessly in Mantra’s courses (if the company were to be unsuccessful in the review), a misfortune for the students and possibly a blot on the VET sector more generally, and on ASQA as the regulator of that sector. ASQA has argued on the authority of ASIC v AAT that the interests of the public outweigh those of employees (meaning I assume the employees of Mantra, who would lose their employment were the company to cease operations), but that is a conclusion that needs to be arrived at in the context of the particular matter: the full Federal Court concluded that the public interest was an overriding factor in that case but it does not follow that it is an overriding factor here.
It is plain that the needs of both parties would be best served by a hearing brought on urgently and decided quickly so as to allow Mantra to have a more certain sense of its future. I will ask the Registrar to list the matter urgently for a hearing. For the present, I do not propose to impose the conditions sought by ASQA; whether they are needed or not will depend on how quickly a hearing can be held and the matter decided. It is open to ASQA to seek once again to attach the conditions to the stay (or, equally, to seek other action) should developments make this desirable or necessary. I note that if Mantra is unsuccessful in the review its registration would come to an end and it would presumably be unable to continue its operations as a provider of VET services; if it is successful, subsection 31(3) of the NVR Act would have the effect that its operations could continue while its application to ASQA were decided.
To refer this matter to alternative dispute resolution at this time would lead to further delay and put at risk the urgent hearing, the need for which is identified above. It is my view that the matter would be best taken forward by proceeding to hearing without being subject to alternative dispute resolution.
I certify that the preceding 25 (twenty-five) paragraphs are a true copy of the reasons for the decision herein of Member Mark Hyman.
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Associate
Dated: 12 December 2018
Date of hearing: 25 October 2018 Date final submissions received: 9 November 2018 Advocate for the Applicant: Ms Donna Moulds, Mantra Training and Development Pty Ltd Solicitors for the Respondent: Ms Louise McDermott, Australian Skills Quality Authority
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