Pow Wow Training Pty Ltd v Australian Skills Quality Authority
[2012] FCA 1490
FEDERAL COURT OF AUSTRALIA
Pow Wow Training Pty Ltd v Australian Skills Quality Authority [2012] FCA 1490
Citation: Pow Wow Training Pty Ltd v Australian Skills Quality Authority [2012] FCA 1490 Parties: POW WOW TRAINING PTY LTD ACN 120 698 231 v AUSTRALIAN SKILLS QUALITY AUTHORITY File number: VID 860 of 2012 Judge: LOGAN J Date of judgment: 20 November 2012 Catchwords: ADMINISTRATIVE LAW – judicial review – natural justice – procedural fairness – application for renewal of registration – representation by agency that opportunity would be offered to respond to audit report before decision – applicant’s reliance upon that representation to its detriment – no opportunity in advance of decision by decision-maker to make submission as to adverse finding in audit report or to why representation as to response time should be revoked – held: denial of procedural fairness - suspension for non-compliance – insufficient time provided by Authority to applicant to respond to proposed suspension – held: denial of procedural fairness – refusal to renew registration decision quashed – suspension decision quashed – renewal application referred to Authority for further consideration Legislation: Constitution (Cth) s 75(v)
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 10
Judiciary Act 1903 (Cth) s 39B
National Vocational Education and Training Regulator Act2011 (Cth) ss 16, 17, 18, 31, 35, 36, 37, 38, 53, 57, 59, 155, 157, 161, 199, 200, 201, 203Cases cited: Attorney-General (Hong Kong) v Ng Yuen Shiu [1983] 2 AC 629 considered
Attorney General (NSW) v Quin (1990) 170 CLR 1 cited
CARE Employment & Training Services Pty Ltd v Australian Skills Quality Authority [2012] FCA 367 cited
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 applied
Kioa v West (1985) 159 CLR 550 considered
Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57 cited
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 applied
Stead v State Government Insurance Commission (1986) 161 CLR 141 considered
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 consideredDate of hearing: 19 November 2012 Place: Brisbane (via videolink to Melbourne and Sydney) Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 60 Counsel for the Applicant: Mr J Pizer Solicitor for the Applicant: Wilmoth Field Warne Solicitor for the Respondent: Mr P Cribb
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 860 of 2012
BETWEEN: POW WOW TRAINING PTY LTD ACN 120 698 231
ApplicantAND: AUSTRALIAN SKILLS QUALITY AUTHORITY
Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
20 NOVEMBER 2012
WHERE MADE:
BRISBANE (VIA VIDEO LINK TO MELBOURNE AND SYDNEY)
THE COURT ORDERS THAT:
1.Pursuant to s 16(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act), the respondent’s Refusal to Renew Registration Decision, with effect from 17 September 2012, is quashed.
2.The Refusal to Renew Registration Decision is invalid and of no force or effect.
3.Pursuant to s 16(1)(a) of the ADJR Act, the respondent’s Suspension Decision, with effect from 4 October 2012, is quashed.
4.The Suspension Decision is invalid and of no force or effect.
5.Pursuant to s 16(1)(b) of the ADJR Act, the applicant’s renewal application is referred to the respondent for further consideration according to law and by another delegate of the respondent.
6.The respondent pay the applicant’s costs of and incidental to this proceeding, including reserved costs.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 860 of 2012
BETWEEN: POW WOW TRAINING PTY LTD ACN 120 698 231
ApplicantAND: AUSTRALIAN SKILLS QUALITY AUTHORITY
Respondent
JUDGE:
LOGAN J
DATE:
20 NOVEMBER 2012
PLACE:
BRISBANE (VIA VIDEO LINK TO MELBOURNE AND SYDNEY)
REASONS FOR JUDGMENT
Pow Wow Training Proprietary Limited (Pow Wow Training) as applicant seeks the review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) of two decisions made by or on behalf of a Commonwealth administrative agency known as the Australian Skills Quality Authority (the Authority), which is the respondent to these proceedings.
The decisions under review are these:
(a)a decision by the authority as regulator under the National Vocational Education and Training Regulator Act2011 (Cth) (the Act) to refuse Pow Wow Training’s application for the renewal of its registration as what is known as an “NVR registered training organisation” on 17 September 2012; and
(b)a decision to suspend the whole of the scope of Pow Wow Training’s registration as a registered training organisation on 5 October 2012.
The factual background to the making of these decisions is not controversial. The following account of that background was taken from the affidavit of Pow Wow Training’s sole director and controller, Ms Kate Southall, whose evidence in that regard I accept.
From this it emerges that Pow Wow Training was incorporated in 2006. Strictly speaking, the shareholding reposes in a company controlled by Ms Southall, Pow Wow Consulting Pty Ltd, but she in turn is the sole director and shareholder of that company. In effect then, she is the controller of Pow Wow Training.
Prior to the Act’s enactment, Pow Wow Training was registered under Victorian legislation as a training organisation. When the Act commenced, and in respect of organisations which sought registration under its terms, there were provisional arrangements, the result of which saw Pow Wow Training taken to be registered under the Act as an NVR registered training organisation, for a period which, in the ordinary course, would have expired on 31 July 2012.
At present, not all States have chosen to be participating states in relation to the Act. In that sense, the title of the Act is something of a misnomer in that there is not, as yet, and depending upon political value judgments by State governments, may never be, a national vocational education and training regulation system.
However that may be, New South Wales is a participating state, and Pow Wow Training operates in both Victoria and New South Wales. It is therefore essential for Pow Wow Training’s operations that it has, materially, registration under the Act. That is so even though, predominantly, Pow Wow Training provides training to students in Victoria. Victorian students comprise some 80% of the student body. Other students are drawn from New South Wales.
Pow Wow Training supplies services in what may be described as a niche market in respect of vocational training. That market was identified by Ms Southall, who has lengthy experience in the provision of corporate and community-based training. She identified a need for the provision of appropriate and targeted training to disadvantaged job seekers which would then enable them to enter or re-enter the workforce. It was to service that particular market, including the provision of training to the long-term unemployed, parents returning to work, mature-age job seekers and individuals who had been retrenched after long periods of time in the same industry, and individuals with limited formal education that Pow Wow Training was established.
Pow Wow Training’s principal source of revenue, reflecting its predominant student intake, comes from funding from the Victorian Skills Commission. It also receives funding from the Government of New South Wales, via its Department of Education and Training, and from the Commonwealth Government.
Related to the predominant source of Pow Wow Training’s funding is a need for the urgent determination of this application. That need arises from an expression of interest deadline arising from the requirements of the Victorian Skills Commission. The deadline for the submission of an application to that commission is tomorrow. In turn, and related to that application, is a requirement for Pow Wow Training’s status and terms of registration to be disclosed. As matters stand at present, its status is formally that of a body whose registration is not renewed. That decision is presently the subject of a stay. In turn, the suspension is also the subject of a stay. Nonetheless, there is an obvious detrimental quality in terms of the disclosure of that status in relation to an expression of interest. Pow Wow Training is under something of a cloud so far as its ability to put an expression of interest in to the commission is concerned.
On 4 May 2012, Pow Wow Training submitted an application to the Authority to renew its registration. On 25 July 2012, not having heard anything in respect of that application from the Authority and with the registration expiry date looming, an officer of Pow Wow Training sent a follow-up email to the Authority in respect of its renewal application. The Authority responded promptly. On that same day, an officer of the Authority advised by return email:
Your application has been forwarded to the compliance team in Victoria. They will be in contact with you in due course. In the interim, your RTO’s registration has been extended to 31 October 2012.
On 24 August 2012, Pow Wow Training received another email from the Authority. By this email, the Authority advised that an audit had been scheduled and would occur on 28 and 29 August 2012 for the purpose of assessing Pow Wow Training’s application for renewal of its registration. At the same time, Ms Byrnes furnished Ms Southall with a document entitled “Audit Verification Form-Opening Meeting”. The audit was conducted by two officers of the Authority, Ms Samantha Byrnes, the Authority’s principal compliance auditor, and a Ms Michelle Marriot.
During the course of an opening meeting in respect of the audit attended by the two auditors mentioned, Ms Southall and various employees of Pow Wow Training, Ms Byrnes advised those present that Pow Wow Training would receive a copy of the audit report and would then have 20 days to address any non-compliances identified in the report. Ms Southall signed and provided a copy to Ms Byrnes of the document, “Audit Verification Form-Opening Meeting” emailed to her on 24 August 2012. On page 3 of that document, an acknowledgement, which materially provided as follows appeared:
“RTO acknowledgement of post-audit processes
·I understand that if non-compliance is identified in the audit report, ASQA will notify me that evidence of rectification must be forwarded to ASQA within 20 working days of the date of that notification.
·…
·I understand that any rectification evidence provided will be evaluated for compliance and I will be notified of the audit outcome.
·I understand that if the evaluation of rectification evidence identifies that non-compliance remains, the audit report will be finalised and no additional evidence will be considered by ASQA.
·I understand that if non-compliance remains at the time the audit is finalised, ASQA may refuse the application and take a range of regulatory actions including giving written directions, amending, suspending, cancelling or imposing a condition on registration.
…”
[emphasis added]
Viewed in the context of the contemporaneous provision of the audit verification form at the opening meeting, I infer that Ms Byrnes’ reference to 20 days to address non-compliances identified in that report was intended by her to be a reference to the 20-day period referred to in the form which she furnished. In other words, I do not consider that Ms Byrnes set about in any way to mislead Ms Southall and the other Pow Wow Training staff present as to the response period, which would be allowed.
The audit concluded at noon on 29 August. Thereafter that day, Ms Byrnes had a closing meeting with Ms Southall. In the course of that meeting, Ms Byrnes observed to Ms Southall that Pow Wow Training was “critically non-compliant”. In elaborating on that, the effect of Ms Byrnes apprehension as to non-compliance related to the management team of Pow Wow Training at the time and also to issues concerning record keeping and documentation.
Understandably enough, these particular observations occasioned a degree of concern on the part of Ms Southall. She asked, indeed, asked on a number of occasions in the course of this meeting, in effect, “So what happens now?” The response given by Ms Byrnes to her was to the effect that it would probably take a good 15 days to finalise the written audit report and that she was “not going to rush getting the report back to her”. Also in the course of this closing meeting, Ms Byrnes again made reference to the response time that would be permitted in respect of the audit report. She again made reference to 20 days and, again in context, that is to be regarded as a reference by her to the 20-working-day period specified in the form.
Ms Southall also asked Ms Byrnes in the course of that closing meeting whether she thought that Pow Wow Training would be able to rectify the non-compliance issues that she had identified. Ms Byrnes replied in words to this effect, “Of course you will and I have total belief that you will”. The two ladies also discussed in the course of this closing meeting how Pow Wow Training could address issues which had been raised by Ms Byrnes. Ms Byrnes told Ms Southall that Pow Wow Training had a lot of qualifications in its scope of registration and that reducing these would be one way to address any non-compliance. She also made reference again to the current management team and suggested that Pow Wow Training needed to revise its management structure.
Ms Southall did not just sit back and cause Pow Wow Training to await the receipt of the audit report. Instead, having regard to what she had been told during the course of the audit, she took a number of proactive steps. First and foremost, she developed a project plan directed to the end of ensuring full compliance with the “Standards for NVR Registered Training Organisations 2011”. Those standards are established under the Act. In furtherance of that plan, Ms Southall caused Pow Wow Training to take the following actions:
(a)engaging three independent auditors to review all aspects of Pow Wow Training for the purpose of ensuring its compliance with the standards; this cost $8745;
(b)engaging three external project managers to action all necessary steps required to rectify any identified non-compliance or issues raised during the audit; this cost $40,000;
(c)purchasing a new assessment system; this cost $42,075;
(d)sending particular trainers to personal development sessions to ensure that each of them had the required qualifications and the occasional education and training industry experience; this cost some $8000;
(e)reviewing all files, records and paperwork to the end of ensuring that they were up to date and compliant with the standards;
(f)advising Ms Byrnes by a letter dated 5 September 2012 that Pow Wow Training would be making significant and immediate changes to its executive leadership and corporate structure, and also requesting that 14 qualifications be removed from Pow Wow Training’s then-existing scope of registration.
Inclusive of some other measures which it is not necessary to detail, the steps identified above cost Pow Wow training, in all, some $100,000.
By mid-September 2012, Pow Wow Training had completed, to Ms Southall’s estimation, about 90% of what she expected, having regard to the communications in the course of the audit and subsequent advices received by her in the implementation of the project plan, would be the necessary work required to ensure compliance. At that time, she considered that Pow Wow Training would have a further 20 days to rectify any remaining non-compliance following the receipt of the audit report. She therefore awaited with a degree of confidence the receipt of that report and the undertaking of whatever might remain, so she apprehended, in terms of ensuring compliance.
Around 14 September 2012, Ms Southall contacted Ms Byrnes to request an update as to when Pow Wow Training might expect to receive the audit report. She received that same day a response from Ms Byrnes advising that the commissioners of the Authority had made a decision and that the decision would be communicated to Pow Wow Training on 17 September 2012. Ms Southall assumed, understandably enough at the time, that the decision to which Ms Byrnes had made reference was a reference to the Authority’s response to the request which Pow Wow Training had made on 5 September to reduce the scope of its registration and, further, that the decision related to the provision of the audit report.
In this expectation, she was, sadly, to be mistaken. That is so because on 17 September 2012, Pow Wow Training received, under cover of an email communication from the Authority, no less than five letters to three of which it is necessary to refer. One of those conveyed one of the decisions under review namely, the decision to refuse to renew registration. Another was indeed directed to the subject of reducing the scope of Pow Wow Training’s then-registration. Yet another was a letter entitled “Notice of Intention to Make a Decision to Suspend Section 37(1)”.
The letter advising the decision to reject the application for renewal of registration was under the hand of a Mr Jerzy Gill, the Authority’s regional manager of compliance operations. In that letter, Mr Gill advised that Pow Wow Training’s application of renewal of registration had been rejected on the basis of numerous grounds particularised in the letter. On page 4 of the letter, it was stated:
A copy of the audit report is attached for your reference.
Lamentably, that statement was not true; no copy of the audit report was enclosed with that letter. Self-evidently from the contents of the letter, the particularised bases upon which registration had been rejected were derived from the audit report.
The separate letter of 17 September 2012 conveying the notice of intention to make a suspension decision identified:
…the same reasons as particularised in ASQA’s letter of 17 September 2012 giving notice of rejection of the RTO’s application for renewal –
as the basis upon which it was intended to suspend registration. It is not necessary to detail the other enclosures to the authority’s email of 17 September 2012.
Following the receipt of this email Ms Southall forthwith telephoned Mr Gill. She expressed shock at the receipt of the refusal to renew a notice of its intention to suspend decisions. In particular she queried as to what had happened to the 20 day period Pow Wow Training was to be afforded to complete any rectification. The response given was that, because of the severity of the non-compliance, the commissioners had decided not to give 20 days. This, in turn, occasioned an expression of disbelief on the part of Ms Southall, who asked Mr Gill whether it was possible to meet with the authorities to discuss the decisions. This request was refused and the response given was to this effect, “If you want to appeal the decision you could go to the AAT and the letter set out how this could be done”.
Ms Southall states, and I accept, that she was left at the conclusion of this telephone call with the impression that there was nothing which she could do or say to change Mr Gill’s mind. Also during the course of this conversation Ms Southall advised Mr Gill that one reason why she was astounded at what had occurred was that she had not even seen the audit report. Later that same day, Mr Gill emailed her a copy of the audit report. It is noteworthy that that audit report is dated 6 September 2012.
Forthwith after the conclusion of the telephone conversation with Mr Gill, Ms Southall took steps directed to the institution of administrative review proceedings in the Administrative Appeals Tribunal in respect of the refusal to renew registration decision and also what she understood, wrongly, was a suspension decision. She misunderstood the letter in respect of suspension in that the letter notified an intention to suspend rather than a suspension decision itself.
Even had Ms Southall not misunderstood the notice of intention to suspend her opinion is that Pow Wow Training could not adequately have responded within the period allowed (which was until 21 September 2012) to all of the issues raised in the notice of intention to suspend. The Authority, after the receipt of the initiating application in the Administrative Appeals Tribunal, by a letter sent to Pow Wow Training by email at about 3.35 pm on Friday, 28 September 2012, drew to Ms Southall’s attention that the Authority had not as yet made a suspension decision. It was only upon the receipt that afternoon of that letter that Ms Southall realised her error in respect of that particular 17 September 2012 letter.
The Authority’s email of 28 September 2012 also advised “If there is anything further you would like to put to the Commissioners for their consideration please do so no later than 4 pm on Monday 1 October 2012”. Mr Gill’s email address was nominated as the point of contact for anything further Pow Wow Training wished to put. Ms Southall’s opinion was that, in effect, one business day was not, given the matters raised in the notice of intention to suspend, sufficient time adequately to respond. In the result, she did cause Pow Wow Training to make a response but that response did nothing more than volunteer what one might describe as a temporary cessation of operations.
The Authority’s further response was to notify on 5 October the suspension of registration decision mentioned. That decision has in turn become the subject of a further application for review to the Administrative Appeals Tribunal. It is common ground between the parties that, having regard to the nature of the issues raised in the administrative review applications and the ordinary practice and procedure of the tribunal it is unlikely that the tribunal would hear the review applications in its Victorian District Registry until April 2013. Everything I know about the nature of the issues raised, having regard to the particularised alleged deficiencies and the contents of the audit report and the tribunal’s practice and procedure tells me that the common ground reached between the parties reasonably reflects the likelihood about when the tribunal could hear these review applications. Hear, of course, is one thing; determine is another.
Ms Southall’s affidavit is replete with the likely consequences for Pow Wow Training of having to await until some time, in all likelihood after April 2013, a decision on the merits from the tribunal. The long and the short of it is that it is likely that a delay of that length would have catastrophic consequences for the future of Pow Wow Training’s business and for all those who work in that business. That is quite apart from its singular impact on Ms Southall as the effective owner.
It is now necessary to prescribe something of the system established by the Act insofar as it relates to the decisions under review. The Authority is an administrative agency established by s 155 of the Act. The Act, in establishing that agency, terms it the “National Vocational, Education and Training Regulator”. Nowhere in the Act is there any reference to the Authority. Rather, the Act makes particular and repeated reference to the National VET Regulator, which is the abbreviation given in s 155(1). For reasons which commended themselves to parliament, provision is made by s 155(2) in these terms:
The National VET Regulator may also be known by a name specified in the regulations.
Pursuant to reg 5 of the National Vocational, Education and Training Regulations 2011, Her Excellency, the Governor-General in Council, has chosen to give the name Australian Skills Quality Authority to the National VET Regulator. So it is that the public administrative agency, termed by the Act the National VET Regulator, is known as the Australian Skills Quality Authority.
The Authority consists of a chief commissioner and two commissioners: s 156. Its functions are delineated in s 157. It is not a separate statutory body corporate but rather, as I have said, an administrative agency of the Commonwealth. In that regard, per force of s 161, it enjoys the privileges and amenities of the Crown in right of the Commonwealth.
The following sections of the Act are material and are as follows:
Section 16 Application for registration
(1)A person may apply to the National VET Regulator for registration, including renewal of registration, as an NVR registered training organisation.
Note:It is an offence to provide or offer to provide all or part of a VET course without registration, see section 116.
(2)A body that is part of a State or Territory may apply to the National VET Regulator for registration, including renewal of registration, of the body as an NVR registered training organisation.
(3)An application for registration must be in a form approved by the National VET Regulator and must be accompanied by:
(a)any information or documents that the Regulator requires; and
(b)the application fee determined by the Minister, by legislative instrument, under section 232.
Section 17 Registration
Grant of application for registration
(1) The National VET Regulator may grant an application for registration.
(2)In deciding whether to grant an application, the National VET Regulator must consider whether the applicant complies with:
(a) the VET Quality Framework; and
(b)the applicable conditions of registration set out in Subdivision B of this Division.
(3)When considering the application, the National VET Regulator may conduct an audit of any matter relating to the application.
(4)The National VET Regulator may charge a registration assessment fee for considering the application.
Period of registration
(5)If the National VET Regulator grants an application, the Regulator must also determine the period for which the applicant is registered. The period must not be more than 5 years.
Note: For renewals of registration, see section 31.
Conditions of registration
(6)If the National VET Regulator considers it appropriate to do so, the Regulator may impose one or more conditions under subsection 29(1) to which an organisation's registration is subject.
Note:An NVR registered training organisation is also subject to statutory conditions, see Subdivision B of this Division.
Section 18National VET Regulator to notify applicant of decision on registration
The National VET Regulator must, within 30 days of its decision to grant or reject an application for registration as an NVR registered training organisation, notify the applicant, in writing, of:
(a) the decision; and
(b) if the Regulator rejects the application--the reasons for the decision; and
(c) if the Regulator grants the application--the following:(i) the applicant's scope of registration;
(ii) the period for which the organisation is registered;
(iii)any conditions imposed on the organisation's registration under subsection 29(1);
(iv)the registration fee payable by the applicant and, if the fee is to be payable in instalments, the amount of each instalment and the date on which it is to be paid.
Note:Subparagraphs (c)(i) to (iii)--in relation to each NVR registered training organisation, these details are included on the National Register, see section 216.
Section 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 35 Audits
(1)The National VET Regulator may, at any time, conduct a compliance audit of an NVR registered training organisation's operations to assess whether the organisation continues to comply with this Act or the VET Quality Framework.
(2)The National VET Regulator may also review or examine any aspect of an NVR registered training organisation's operations to determine any systemic issues relating to the quality of vocational education and training.
Section 36 Sanctions
(1) This Subdivision applies if:
(a)after natural justice requirements have been satisfied, the National VET Regulator is satisfied that it is appropriate to impose one or more sanctions on an NVR registered training organisation; or
(b)in exceptional circumstances, the National VET Regulator is satisfied that it is appropriate to impose one or more sanctions on an NVR registered training organisation without satisfying natural justice requirements.
(2) The National VET Regulator may do one or more of the following:
(a)give a written direction to an NVR registered training organisation requiring the organisation to rectify a breach of a condition on the organisation's registration;
(b)give a written direction to an NVR registered training organisation requiring the organisation to notify its VET students, in writing, of a matter set out in the direction;
(c)shorten the period of an NVR registered training organisation's registration;
(d)amend an NVR registered training organisation's scope of registration;
(e)suspend all or part of an NVR registered training organisation's scope of registration under section 38;
(f)cancel an NVR registered training organisation's registration under section 39.
(3)In determining what action to take in relation to an NVR registered training organisation, the National VET Regulator may have regard to:
(a)the organisation's conduct, or circumstances existing, before the Regulator had cause to consider imposing a sanction on the organisation (including before the commencement of this section); and
(b)if section 37 applies--the organisation's conduct, or circumstances existing, since the Regulator gave the organisation a written notice as mentioned in that section.
Section 37 Natural justice requirements
(1)For the purpose of paragraph 36(1)(a), before making a decision to do any of the things mentioned in subsection 36(2) in relation to an NVR registered training organisation, the National VET Regulator must give the organisation a written notice:
(a)stating that the Regulator intends to make a decision to do a thing mentioned in that subsection and the reasons for the proposed decision; and
(b)inviting the organisation to give the Regulator a written response to the notice:
(i)if the Regulator considers that the circumstances require urgent action--within a period specified in the notice, which must be at least 24 hours; or
(ii)in any other case--within a period specified in the notice, which must be at least 72 hours.
(2)After considering any response received within that period, if the National VET Regulator still considers that the decision should be made, the Regulator:
(a) may make the decision; and
(b)must give the NVR registered training organisation concerned written notice of the decision.
Section 38 Suspension
(1)The National VET Regulator may, by notice in writing, suspend all or part of an NVR registered training organisation's scope of registration.
Note:Details relating to an NVR registered training organisation whose scope of registration is suspended are included on the National Register, see section 216.
(2)During the period of suspension, the National VET Regulator may require the NVR registered training organisation to do something, not to do something, or both. This may include restrictions on:
(a)enrolling a student in a VET course or part of a VET course; or
(b) allowing a VET student to begin a VET course or part of a VET course; or
(c)publishing or broadcasting an advertisement relating to a VET course or any part of a VET course; or
(d)causing to be published or broadcast an advertisement relating to a VET course or any part of a VET course.
Note:Failure to comply with the National VET Regulator's requirements is an offence and a contravention of a civil penalty provision, see sections 101 and 102 respectively.
Section 53National VET Regulator to notify relevant persons of proposed cancellation
(1)If the National VET Regulator proposes to cancel the accreditation of a VET accredited course, the Regulator must advise, in writing, the following of the proposed cancellation:
(a)each NVR registered training organisation that has the course within its scope of registration;
(b) the VET Regulator of each non-referring State.
(2)Advice given under subsection (1) must state the day from which the proposed cancellation is to take effect.
(3)Advice given under paragraph (1)(a) to an NVR registered training organisation must also:
(a)advise the organisation how it is to treat VET students in the VET accredited course; and
(b)if the proposed cancellation would affect any conditions imposed on the organisation's registration under subsection 29(1)--state what conditions will be imposed on the organisation's registration from the day the proposed cancellation takes effect.
Section 57National VET Regulator to notify person concerned of proposed cancellation
(1)Before the National VET Regulator cancels a person's VET qualification or VET statement of attainment, the Regulator must give the person a written notice:
(a)stating that the Regulator intends to cancel the person's qualification or statement and the reasons for the proposed cancellation; and
(b)inviting the person to give the Regulator a written response to the notice:
(i)if the Regulator considers that the circumstances require urgent action--within a period specified in the notice, which must be at least 24 hours; or
(ii)in any other case--within a period specified in the notice, which must be at least 14 days.
(2)If the National VET Regulator is unable to give notice to a person personally, the Regulator may give a notice mentioned in subparagraph (1)(b)(ii) in any other way it considers appropriate, including by:
(a) publishing the notice on its website; or
(b) publishing the notice in:(i)a national daily newspaper that circulates throughout Australia; and
(ii)a regional daily newspaper of the State or Territory in which the person concerned is believed to reside.
Note:See also section 28A of the Acts Interpretation Act 1901 (which deals with service of documents).
(3)To avoid doubt, the National VET Regulator may not give a notice mentioned in subparagraph (1)(b)(i) in a way mentioned in subsection (2).
Section 59 When cancellation takes effect
(1)Subject to subsection (2), the cancellation of a person's VET qualification or VET statement of attainment takes effect at the end of:
(a)the 7-day period starting on the day the person is given notice under subsection 58(4) of the decision to cancel, if that decision relates to a notice mentioned in subparagraph 57(1)(b)(i); or
(b)the 30-day period starting on the day the person is given notice under subsection 58(4) of the decision to cancel, if that decision relates to a notice mentioned in subparagraph 57(1)(b)(ii).
(2) If:
(a)apart from this subsection, paragraph (1)(b) would apply to a person; and
(aa)the person applies to the Administrative Appeals Tribunal for review of the National VET Regulator's decision to cancel the person's VET qualification or VET statement of attainment within the 30-day period mentioned in paragraph (1)(b); and
(b)the person notifies the Regulator, in writing, of that fact within that 30-day period; and
(c)the decision of the Tribunal affirms the National VET Regulator's cancellation decision;
cancellation of the qualification or statement takes effect when the appeal is finally determined or otherwise disposed of.
Section 199 Reviewable decisions
For the purposes of this Act, each of the following decisions of the National VET Regulator is a reviewable decision:
…
A decision to reject an application for registration (including renewal of registration) as an NVR registered training organisation.
…
A decision to suspend all or part of an NVR registered training organisation's scope of registration.
Section 200 Applications for reconsideration of decisions
(1)This section applies to a reviewable decision if the decision is made by a person or body to whom a function or power is delegated under section 224 or 225.
(2)A person affected by a reviewable decision who is dissatisfied with the decision may apply to the National VET Regulator for the Regulator to reconsider the decision.
(3)The application must:
(a) be in a form approved in writing by the National VET Regulator; and
(b) set out the reasons for the application; and(c)be accompanied by the fee (if any) determined by the Minister, by legislative instrument, under section 232.
(4) The application must be made within:
(a) 30 days after the applicant is informed of the decision; or
(b)if, either before or after the end of that period of 30 days, the National VET Regulator extends the period within which the application may be made--the extended period.
(5)An approved form of an application may provide for verification by statutory declaration of statements in applications.
Section 201 Reconsideration by the National VET Regulator
(1) Upon receiving such an application, the National VET Regulator must:
(a) reconsider the decision; and
(b) affirm, vary or revoke the decision.(2) The person who reconsiders the decision must be:
(a)if a member of the staff of the Regulator made the decision under review--a Commissioner or a member of the staff of the Regulator who:
(i) was not involved in making the decision; and
(ii)occupies a position that is senior to that occupied by any person involved in making the decision; or
(b)in any other case--a Commissioner or a member of the staff of the Regulator who was not involved in making the decision.
(3)The National VET Regulator's decision on reconsideration of a decision has effect as if it had been made under the provision under which the original decision was made.
(4)The National VET Regulator must give to the applicant a written notice stating its decision on the reconsideration. The notice must explain that the applicant may apply to the Administrative Appeals Tribunal for review of the Regulator's decision on the reconsideration.
(5)Within 30 days after making its decision on the reconsideration, the National VET Regulator must give the applicant a written statement of its reasons for its decision.
Section 203 Review by the Administrative Appeals Tribunal
(1)Applications may be made to the Administrative Appeals Tribunal for review of a reviewable decision if the National VET Regulator has affirmed or varied the decision under section 201.
(2)Applications may be made to the Administrative Appeals Tribunal for review of a reviewable decision if the decision was made by a person other than a member of the staff of the Regulator.
As I have mentioned, Ms Southall deposes in her affidavit to steps taken by Pow Wow Training after the conclusion of the audit on 29 August 2012 to rectify what she understood to be non-compliance issues, either as a result of her conversations with Ms Byrnes in the course of the audit or as a result of advice received in the course of implementing the project plan mentioned. Pow Wow Training’s position is that having taken these steps, it is likely to be more compliant with the standards than it was at the time of the audit. It is common ground, as it necessarily must be, having regard to the nature of a judicial review proceeding, that it is no part of the application that the Court is asked to determine Pow Wow Training’s level of compliance. Further, at present, the Authority is not in a position to test Pow Wow Training’s current level of compliance for the purposes of this proceeding. Indeed, rightly, it has not sought so to do. The question of compliance or otherwise is one which would fall for determination on external merits review in the tribunal. Equally, of course, the Authority could itself form a view separately to these proceedings in relation to the degree of compliance.
This common ground reflects a feature of judicial review which is well known and was never better put than by Brennan J, as his Honour then was, in Attorney General (NSW) v Quin (1990) 170 CLR 1 at pages 35 to 36:
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
Pow Wow Training advances a number of grounds of review, each of which, in one way or another, seek to establish that each of the decisions under review entailed a denial of natural justice to Pow Wow Training in the circumstances of this case.
In the first instance, Pow Wow Training alleges that it was denied natural justice in the making of the refusal to renew registration decision because the Authority did not give it any notice of, much less any opportunity to respond, to the adverse findings in the audit report upon which the Authority proposed to and did, in fact, rely in the making of that decision. The Authority’s contention is that it was not in the circumstances under any such obligation.
The following passage from the judgment of Mason J, as his Honour then was, in Kioa v West (1985) 159 CLR 550 at 587 (Kioa v West) neatly encapsulates the competing contentions:
However, this is not to say that fairness will necessarily, or even generally, require that an applicant for a further entry permit be given an opportunity to be heard even when deportation may follow from its refusal. The grant of an entry permit is a matter of discretion. Indeed, the cancellation of a temporary entry permit is expressed to be a matter of absolute discretion: s 7(1). In the ordinary course of granting or refusing entry permits there is no occasion for the principles of natural justice to be called into play. The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward.
But if, in fact, the decision-maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter.
In effect, the Authority’s contention is that this is nothing more than a case where there was an application for renewal, in other words an application for a privilege granted by statute, and it fell, therefore, to Pow Wow Training to make, as best its could, its case for renewal of registration with no cause for complaint arising if the Authority chose not to accept the case for renewal of registration made by Pow Wow Training. On this basis of contention, the status of the audit report was nothing more than that of an editorial comment made by another officer for the benefit of the commissioners in respect of the merits or otherwise of the renewal application.
Pow Wow Training’s position is in effect, that the case is one which falls within what one might term the proviso or caveat given by Mason J in the passage quoted from Kioa v West. More particularly, Pow Wow Training’s position is that this is a case which is an exemplar of a principle in relation to procedural fairness described by the Full Court of this Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590 to 591 (Alphaone) which was referred to by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152. In Alphaone the Full Court stated:
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.
The Full Court in Alphaone had earlier stated:
It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.
The present, in my respectful opinion, is a paradigm example where in the circumstances this particular principle has application. Pow Wow Training’s application for renewal of its registration had about it a routine quality. There is nothing in the material which would suggest that when in May 2012 it sought renewal of its registration it had any notice whatsoever that it need address in any detail at all why it was, having regard to particular criteria, its application for renewal should be accepted. The detail as to what was regarded by the Authority as adverse to renewal reposed in the audit report. Pow Wow Training was not given by the Authority any opportunity, in advance of the decision made by the Authority on 17 September, to make any submission at all in respect of the adverse findings found in the audit report.
It is submitted, though, that this is, nonetheless, not productive of any particular jurisdictional error because Pow Wow Training has open to it under the Act a complete right of review on the merits in respect of the decision. This particular submission is mistaken. It is not the effect of the Act that the existence of a right of the merits review has the consequence of negating any obligation on the part of the Authority to observe procedural fairness in relation to the exercise of the statutory power found in s 31 to make a decision in respect of the renewal or otherwise of registration.
The result in this instance of the refusal to allow an opportunity to be heard is that there has been a practical injustice done to Pow Wow Training. It is obvious that there was much material which Pow Wow Training could have put forward, had it been given an opportunity, as to why it was, having regard to the contents of the audit report, its registration ought to be renewed. The fate of any such submission is not of course for me to judge. Nonetheless, Pow Wow Training has been deprived of the opportunity, and it is an opportunity not without prospect of a successful outcome. The deprivation of the prospect of a successful outcome is sufficient to make the deprivation of the opportunity to be heard a practical injustice: see Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147.
That in itself is a sufficient basis upon which to quash the decision to refuse to renew registration. There are, though, other reasons why such a result should follow. These reflect another ground of challenge made by Pow Wow Training to that decision. That ground of challenge centres around the representations which were made at the time of the audit, both orally and in writing, on behalf of the Authority as to the time which would be allowed to Pow Wow Training after the receipt of the audit report to respond to it.
There is no doubt in the circumstances of this case that Pow Wow Training relied upon these particular representations as to response time. As I have said, Pow Wow Training was proactive in seeking to position itself so as to be able to meet apprehended non-compliance issues. In effect, what Pow Wow Training was doing was giving itself a greater lead time against the knowledge that it would have, even after all the measures it had taken, a further 20 working days within which to respond to whatever detail remained after scrutiny of the audit report.
Against this background, Pow Wow Training puts forward that this is a paradigm example of that type of non-observance of procedural fairness described in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 (Lam’s case). I agree.
A useful starting point in that regard is the advice of the judicial committee in Attorney-General (Hong Kong) v Ng Yuen Shiu [1983] 2 AC 629. In that case, the Judicial Committee had stated:
The basis of the applicant’s complain is that when he was interviewed by an official of the Immigration Department who recommended to the director that a removal order against him should be made, he was not able to explain the humanitarian grounds for the discretion to be exercised in his favour. In particular he had no opportunity of explaining that he was not an employee but a partner in a business which employed several workers. The evidence of the applicant, contained in an affidavit to the High Court, was that at the interview he was not allowed to say anything except to answer the questions put to him by the official who was interviewing him.
There had been an earlier announcement by the then colonial government of Hong Kong that a policy would be applied such that people such as the respondent would be interviewed and that each case would be treated on its merits. The removal order concerned was quashed by the judicial committee. As Gleeson CJ noted in Lam’s case at [33]:
The decision of the Privy Council stands for the proposition that, when a public authority promises that a particular procedure will be followed in making a decision, fairness may require that the public authority be held to its promise. That was the basis on which it was explained by Dawson J in Attorney-General (NSW) v Quin. Expectations created by a decision-maker may affect the practical content of the requirements of fairness in a particular case.
[emphasis in original] [footnote references omitted]
The Chief Justice went on to state the following:
[34]The applicant seeks to establish that he was denied procedural fairness. He does not claim that any unfairness exists apart from that created by the statement of 7 November 2000 and the subsequent change of intention without notification to him. The argument is that the letter created an expectation, and fairness required that the procedure foreshadowed in the letter (contacting Ms Tran) should not be departed from without the applicant being informed of the intention to do so. It is not in dispute that, regardless of the letter of 7 November, the respondent was obliged to extend procedural fairness to the applicant. And it is clear that the content of the requirements of fairness may be affected by what is said or done during the process of decision-making, and by developments in the course of that process, including representations made as to the procedure to be followed. So, for example, if a decision-maker informs a person affected that he or she will hear further argument upon a certain point, and then delivers a decision without doing so, it may be easy to demonstrate that unfairness is involved. But what must be demonstrated is unfairness, not merely departure from a representation. Not every departure from a stated intention necessarily involves unfairness, even if it defeats an expectation. In some contexts, the existence of a legitimate expectation may enliven an obligation to extend procedural fairness. In a context such as the present, where there is already an obligation to extend procedural fairness, the creation of an expectation may bear upon the practical content of that obligation. But it does not supplant the obligation. The ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed.
…
[36]The more fundamental problem facing the applicant, however, relates to the matter of unfairness. A statement of intention, made in the course of decision-making, as to a procedural step to be taken, is said to give rise to an expectation of such a kind that the decision-maker, in fairness, must either take that step or give notice of a change in intention. Yet no attempt is made to show that the applicant held any subjective expectation in consequence of which he did, or omitted to do, anything. Nor is it shown that he lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment.
[37]A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations. Attorney-General (Hong Kong) v Ng Yuen Shiu was such a case. So, according to the majority, was Haoucher v Minister for Immigration and Ethnic Affairs. A particular example of such detriment is a case where the statement of intention has been relied upon and, acting on the faith of it, a person has refrained from putting material before a decision-maker. In a case of that particular kind, it is the existence of a subjective expectation, and reliance, that results in unfairness. Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.
[38]No practical injustice has been shown. The applicant lost no opportunity to advance his case. He did not rely to his disadvantage on the statement of intention. It has not been shown that there was procedural unfairness. And, as I have already indicated, there is no warrant for a conclusion that there was a failure properly to take into account the interests of the applicant's children.
[emphasis in original] [footnote references omitted]
Pow Wow Training was, by the conduct of the Authority, denied any opportunity to make any representation at all to the Authority as to why it was it should not be deprived of the opportunity earlier extended by representation of having 20 working days in which to respond. Once again, and for reasons already given, the failure by the Authority to afford this opportunity brought a practical injustice to Pow Wow Training.
It is no answer, in the circumstances of this case, to that practical justice that there is a right of merits review. It is certainly the case that, on external merits review, the tribunal is concerned with making its own decision, not with administrative law error grounds. All that means in relation to this Act is that the Court exercises a judicial discretion in those cases in respect of which jurisdiction is conferred. It does not have any sterilising effect so far as the earlier commission of jurisdictional error is concerned. Such errors remain amenable in appropriate cases either to the issuing of constitutional writs in the original jurisdiction of the High Court pursuant to s 75(v) of The Constitution or to the judicial review jurisdiction conferred on this Court under the ADJR Act and, for that matter, s 39B of the Judiciary Act 1903 (Cth).
Yet a further basis upon which Pow Wow Training seeks to challenge the decision in respect of the renewal of registration is that it was not allowed a sufficient time within which to make a response. That is a more apt basis upon which it seeks to challenge the suspension decision. So far as the refusal to renew decision is concerned it was allowed no time at all. That, axiomatically, was an insufficient time.
I turn, then, to the suspension decision. An analysis of the Act discloses that there is what was described aptly in the course of submissions as a layering of times within which a response might be made. So much flows from an analysis of s 36 and s 37. By s 36(1)(b) it is possible, in exceptional circumstances, for the Authority, if satisfied that it is appropriate to impose one or more sanctions on a registered training organisation, to make its decision without satisfying natural justice requirements specified in s 37 of the Act. Self-evidently from the correspondence sent on 17 September 2012, the authority did not consider this to be a case where there were exceptional circumstances. It is not necessary for me to do anything other than to note the incongruity of that particular administrative stance with the communication to Ms Southall by Mr Gill later on 17 September 2012.
The Authority determined, as is apparent from the notice of intention to suspend, that it should allow at least 72 hours. It is important to recall that the prescription found in s 37(1)(b)(ii) is not a maximum, but a minimum. Whether or not 72 hours is, indeed, reasonable, will depend upon the circumstances of a particular case and, more particularly, upon the nature of the allegation made and what might reasonably be expected in the circumstances to be a response time in respect of that allegation. In this sense, the so-called, by s 37, natural justice requirements do not constitute a code. The Authority is in jeopardy of committing jurisdictional error if it adopts an uncritical approach to the response specifications found in s 37 of the Act.
More particularly and this relates as much as to the refusal to renew decision as to the suspension decision that Parliament has specified so called natural justice requirements in s 37, does not carry with it by implication that other decisions of the Authority, where no such requirements are specified, are not attended with an obligation to observe procedural fairness. In this regard it is sufficient to refer to an observation made by McHugh J in Re Minister for Immigration and Multicultural Affairs ex parte Miah (2001) 206 CLR 57 at [139]; namely, that it is an error to infer from the presence of some matters concerned with natural justice that Parliament intended to exclude natural justice in all other respects.
Here, there were some four pages detailing alleged non-compliance with some 30 standards. To respond within the time permitted was a considerable task indeed, so much so in my view, that the time permitted was not, in the circumstances, a reasonable time. Particularly that is so as it is a necessary conclusion in the circumstances that there was no urgency for the Authority did not seek to rely upon s 37(1)(b) and neither were there circumstances so exceptional that no notice at all ought to be allowed. In other words, this was not regarded by the Authority as a s 36 case.
That, in itself, provides a basis upon which the suspension decision should be quashed. There is, though, another basis. In the ordinary course of events, what is critical in relation to whether or not procedural fairness has been afforded a person likely to be affected by an administrative decision is whether they have been given an “opportunity” to be heard. Whether or not the person concerned takes advantage of that opportunity is quite another matter. It is the affording of the opportunity which is important. So it is that, in the ordinary course of events, a mistake about the opportunity and certainly a mistake unknown to the decision maker could have no effect on a conclusion that an administrator had or had not afforded procedural fairness. Here, though, this administrator did become aware of Pow Wow Training’s mistake. It did so, at the latest, on 28 September 2012. Being aware of that mistake and against a background where the Authority itself had regarded 72 hours as a reasonable time, the Authority, for reasons known best to itself, chose to allow but one working day to Pow Wow Training to respond to the suspension decision. In a strict sense, if one includes the weekend, 72 hours were (just) allowed. Nonetheless, that time in itself is one which I have already regarded as unreasonable. Certainly one working day was unreasonable.
The occasion for allowing but one working day seems to have been nothing more than the scheduled meeting of the Authority’s commissioners later in the week which commenced on 1 October 2012. That was no reason at all for the affording of a less than reasonable time within which to make a response to the notice of intention to suspend. For these reasons, then, each of the decisions under review must be quashed.
It was also submitted that, even if the existence of a right of review on the merits did not go to a denial of procedural fairness obligations, it did go to a discretion to refuse relief, having regard to s 10(2)(b)(ii) of the ADJR Act in particular. In some, perhaps many, cases, the existence of a full right of merits review will provide a powerful reason as to why judicial review relief should be refused; contrast in this regard CARE Employment & Training Services Pty Ltd v Australian Skills Quality Authority [2012] FCA 367. It is trite, though, that whether or not to grant relief must depend on the circumstances of a particular case. In this case, for reasons which I have already mentioned, the existence of a right of merits review would, in the circumstances, see catastrophic results fall upon Pow Wow Training before that particular right could be availed of in the form of a hearing. In those circumstances, it is appropriate to make quashing orders today.
As to costs, there was a submission made on behalf of the Authority that what, in the end, was a failure to press the stay of the suspension decision aspect of the case ought to sound in a variation of the usual order as to costs. It was submitted that some allowance ought to be made for the fact that that particular interlocutory application was not pressed but had nonetheless resulted in extra time being spent in court on 7 November 2012. In particular, reference was made to what was said to be a changed position on the part of Pow Wow Training in relation to the utility of a suspension decision in submissions made at yesterday’s hearing. It must be remembered, though, that those submissions were made against the background and with the advantage not present on 7 November 2012 of knowing with precision the attitude of the Victorian Skills Authority in relation to even the existence of a stay so far as the suspension decision was concerned. The situation as known to Pow Wow Training on 7 November was different. It was not, in my opinion, unreasonable for it to seek a stay of the suspension decision at that stage or, for that matter, once it became known that it was just not possible for the Court to hear the case within the time apprehended, not to press that but rather to provide, as it transpired, an undertaking. In short, there has been, what one might describe as “an evolving tactical situation” in relation to the utility or otherwise of a stay of the suspension decision.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 21 December 2012
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