Mantra Training and Development Pty Ltd and Australian Skills Quality Authority

This matter concerned an application before the Administrative Appeals Tribunal (AAT) between Mantra Training and Development Pty Ltd (Mantra) and the Australian Skills Quality Authority (ASQA). The dispute arose from ASQA's decision not to allow Mantra a shorter period to make an application for renewal of its registration, a decision made under section 31 of the National Vocational Education and Training Regulator Act 2011 (NVR Act). Mantra sought a review of this decision, and a stay had previously been granted on 26 September 2018, allowing Mantra's registration to continue pending the review. ASQA subsequently sought to attach conditions to this stay.

The primary legal issue before the Tribunal was whether it possessed the power to grant the conditions sought by ASQA. This question arose due to the nature of ASQA's original decision, which was to refuse a shorter period for a renewal application, but which ASQA argued had the same practical effect as denying renewal of registration. The Tribunal was required to consider the competing interests of Mantra, its students, potential students, the general public, and ASQA itself, in determining whether to impose conditions on the existing stay.

The Tribunal, constituted by Member Mark Hyman, reasoned that the power to grant a stay under subsection 41(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act) requires consideration of various factors, including the prospects of success, the consequences for the applicant and respondent, the public interest, and whether the application for review would be rendered nugatory without a stay. While the initial stay was granted unopposed, taking into account the nugatory effect on Mantra's review application if refused, ASQA's subsequent submissions highlighted the public interest and ASQA's functional responsibilities. The Tribunal found that the interests affected by the decision and the stay were broad, encompassing Mantra, its students, and the public. Drawing on the Full Federal Court's decision in *ASIC v AAT* [2009] FCAFC 185, the Tribunal concluded that the nature of the decision under review informed the interests to be considered. Crucially, the Tribunal determined that it did indeed have the power to impose the conditions sought by ASQA, as the effect of the decision under review was to bring Mantra's registration and services to an end, and the stay without conditions risked allowing students to enrol in courses they might not complete.

The Tribunal found that it had the power to impose the conditions sought by ASQA. It also noted that Mantra appeared agreeable to an expedited hearing, and that a conciliation might be helpful given Mantra's view that ASQA's decision was based on inaccurate information. However, the Tribunal also observed that Mantra's submission regarding more generous treatment of another company had no bearing on the merits of its own case.