Site Skills Group Pty Ltd and Australian Skills Quality Authority
[2020] AATA 1919
•24 June 2020
Site Skills Group Pty Ltd and Australian Skills Quality Authority [2020] AATA 1919 (24 June 2020)
Division:GENERAL DIVISION
File Numbers: 2018/2310-1
Re:Site Skills Group Pty Ltd
APPLICANT
AndAustralian Skills Quality Authority
RESPONDENT
AndVernon Wills
OTHER PARTY
DECISION
Tribunal:Deputy President I. Hanger AM QC
Date:24 June 2020
Place:Brisbane
The Tribunal decides that the documents mentioned in direction 1 below may be relevant to the review of the decision by the Tribunal and DIRECTS that:
1. The documents sought in Categories ‘A,’ ‘B,’ ‘C,’ ‘E,’ ‘F,’ ‘G,’ ‘H’ and ‘I’ be lodged with the Tribunal on or before 1 July 2020
2. The documents in respect of which the Respondent claims privilege be placed in a sealed envelope and not made available to anyone until further order of the Tribunal.
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Deputy President I. Hanger AM QC
Catchwords
PRACTICE AND PROCEDURE – whether additional documents are required to be lodged under s37(2) of the Administrative Appeals Tribunal Act 1975 (Cth) – whether the documents are relevant to the review of the decision under review by the Tribunal – where the Other Party seeks a direction for the Respondent to produce documents under s37(2) – whether the Tribunal should direct the respondent to produce documents pursuant to subsection 37(2) – Respondent directed to produce documents sought in part.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Standards for Registered Training Organisations (RTOs) 2015
Standards for Vet Regulators 2015Cases
Dimitropoulos and Australian Securities and Investments Commission [2019] AATA 1775
Hawkins V Commissioner of Taxation [2017] FCA 1247Kennedy v Administrative Appeals Tribunal [2008] 168 FCR 566
REASONS FOR DECISION
Deputy President I. Hanger AM QC
24 June 2020
BACKGROUND
The Other Party (or “Mr Wills”) in this matter seeks orders under section 37(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”).
Section 37(2) provides as follows:
Where the Tribunal is of the opinion that particular other documents or that other documents included in a particular class of documents may be relevant to the review of the decision by the Tribunal, the Tribunal may cause to be given to a person a notice in writing stating that the Tribunal is of that opinion and requiring the person to lodge with the Tribunal within a time specified in the notice, the specified number of copies of each of those other documents that is in his or her possession or under his or her control, and a person to whom such notice is given shall comply with the notice.
The subsection refers to documents that may be relevant to the review. It does not refer to documents that are relevant to the review.
That distinction was considered in Hawkins V Commissioner of Taxation [2017] FCA 1247 at [58]. Wigney J said, ‘The test of “may be relevant” in section 37 (2) of the AAT act could perhaps be likened to the test that is commonly employed in determining questions concerning the scope and forensic purpose of a subpoena. The test for whether a subpoena has a legitimate forensic purpose has been put in terms of whether the material caught by the subpoena appears to have relevance in the sense of “throw[ing] light” on at least some of the issues in the principal proceedings”.
The Tribunal must be satisfied that there is “a rationally articulated connection between the documents sought and the matters required to be determined in the review proceedings” and the “potential relevance must be directed at the capacity of the documents…to influence the determination of the proceedings” (Dimitropoulos and Australian Securities and Investments Commission [2019] AATA 1775 at [82]; Kennedy v Administrative Appeals Tribunal [2008] 168 FCR 566 at [28]-[29]).
The issue in the current proceedings concerns the registration of the applicant to deliver educational services. The issue from the point of view of the Other Party arises within those proceedings from a consideration of Standard 7.1 of the Standards for Registered Training Organisations (RTOs) 2015.
Standard 7.1(b) requires an RTO to ensure that its executive officers meet the “Fit and Proper Person Requirements” in Schedule 3 of the 2015 Standards. One of those requirements is that the public is likely to have confidence in the person’s suitability to be involved in an organisation that provides, assesses or issues nationally recognised qualifications.[1]
[1] Standards for Registered Training Organisations (RTOs) 2015, Schedule 3, “Criteria for suitability”, (i).
The interest of Mr Wills in these proceedings principally arises on the issue of whether Site Skills Group Pty Ltd (“SSG” or “the Applicant”) complied with Standard 7.1.[2] However, the decision that is under review did not deal, or depend on, any issue as to whether Mr Wills was a fit and proper person. The respondent raises that issue in this proceeding as part of its argument to affirm the decision that is being reviewed. The reason that the issue raised by Standard 7.1 was not raised and determined earlier in these proceedings is that the same issue was to be ventilated in other proceedings on foot at the time and it was suggested that the determination in these proceedings if conducted before the other proceedings would be covering the same ground and could be prejudicial to the other proceedings.
[2] Standards for Registered Training Organisations (RTOs) 2015.
The principal issue now relates to the part played by Mr Wills both in Productivity Partners Pty Ltd (“PP”) and in Site Skills Group and what effect if any that may have on this hearing in relation to registration of the Applicant.
The Other Party seeks an order in relation to particular categories of documents set out hereunder and submits that in particular the following matters are relevant in the proceedings: –
(a)ASQA’s investigation into PP;
(b)ASQA’s “reasoned findings” in relation to PP;
(c)ASQA’s audit of SSG and SSG’s response to that audit;
(d)SSG’s compliance or non-compliance with other aspects of the 2015 Standards that bear on whether or not Mr Wills is a fit and proper person.[3]
The documents sought by Mr Wills
[3] The Other Party’s Submissions for Direction under Subsection 37(2) of the AAT Act, dated 5 June 2020, page 4, paragraph 20.
Categories A and B: the qualifications of assessors and auditors
The first two categories of documents sought relate to the qualifications of various people. Production is sought of:
(a)documents evidencing the enrolment, course dates, completion dates and issuing training provider for the Certificate IV in Training and Assessment, and Diploma of Quality Auditing, undertaken by ASQA reviewers Emma Marx and Damien Cox; and
(b)documents evidencing the enrolment, course dates, completion dates and issuing training provider for the Certificate IV in Training and Assessment, and Diploma of Quality Auditing, undertaken by Anthony Sheppard.[4]
[4] The Other Party’s Submissions for Direction under Subsection 37(2) of the AAT Act, dated 5 June 2020, pages 4 – 5, paragraph 20.
The people referred to provided reports which dealt with the issue of whether PP and SSG complied with the applicable Standards. The Other Party submits that, under the Standards 1.9(c) and 2.3 of the Standards for Vet Regulators 2015 ASQA, it is itself required to ensure that its auditors and course accreditation assessor meet certain competency requirements that are set out in Schedule 1 of the Standards. One of the competency requirements is that assessors and auditors hold a Certificate IV in Training and Assessment and a Diploma of Quality Auditing. The Other Party seeks the documentation set out above to establish their qualifications.
The respondent submits that “the decisions of the Commissioners are under review in the stayed PP proceedings, not the decisions of ASQA auditors or officers who assisted those auditors. None of Ms Marks, Mr Sheppard or Mr Cox are witnesses in this proceeding.”[5]
[5] ASQA’s Submissions, dated 11 June 2020, page 3, paragraph 11.
While it is true that the decision is that of the Commissioners, they obviously had regard to the information provided to them by experts. The conduct of the Other Party relates, among other things, to his involvement in a body that has failed to comply with Standards in the opinion of the experts. Their qualifications or lack thereof may be relevant and may throw light on the issues in the proceedings.
In accordance with section 37(2) I direct that documents sought under categories A and B be lodged with the Tribunal on or before 1 July 2020.
Category C: the decisions to extend the scope of registration
Mr Wills seeks production of:
(c)ASQA’s decisions on SSG’s applications for scope changes which were approved on or around 17 July 2017 and 5 October 2017.[6]
[6] The Other Party’s Submissions for Direction under Subsection 37(2) of the AAT Act, dated 5 June 2020, page 6, paragraph 31.
The submission by the legal representatives for Mr Wills is to the effect that since the requirements that are set out in Standard 1.6(a) of the Standards for VET Regulators 2015 specify that the scope of registration should not be extended while there are outstanding non-compliances by the applicant, it can be inferred that ASQA was satisfied with steps being taken to address non-compliances at that point in time.[7] Attention is drawn to the fact that as early as April 2017 ASQA had expressed a view that Mr Wills was not a fit and proper person and yet it went ahead with the approval.[8]
[7] Ibid, page 6, paragraph 35.
[8] The Other Party’s Submissions for Direction under Subsection 37(2) of the AAT Act, dated 5 June 2020, page 7, paragraph 36.
Mr Wills is aware that his fitness or otherwise in relation to Standard 7.1[9] was not raised in relation to these proceedings because it was to be thoroughly canvassed elsewhere and a finding in these proceedings might prejudice other proceedings. Nevertheless, the fact that there was a decision to extend the scope of registration, which might arguably be said to be inconsistent with a concern that Mr Wills was not a fit and proper person, indicates to me that the documents may be of relevance. I direct the respondent to lodge the documents with the Tribunal on or before 1 July 2020
[9] Standards for Registered Training Organisations (RTOs) 2015.
Category D: explanation for the omission of a briefing document
Mr Wills seeks production of:
(d)any documents evidencing the reason(s) for omitting the ‘Commissioners’ brief – Site Group RTO’s (Attachment 5 to the Audit Outcome Decision Record (AODR) dated 1 September 2017 from the AODR dated 11 September 2017 and signed by Mr Lavarch on 13 September 2017.[10]
[10] The Other Party’s Submissions for Direction under Subsection 37(2) of the AAT Act, dated 5 June 2020, page 7, paragraph 37.
The Respondent asserts no such document has been located or known to exist.[11] I accept that statement and make no order in relation to Category D.
[11] ASQA’s Submissions, dated 11 June 2020, page 3, paragraph 13.
Categories E - I: AGS advice and related documents
Mr Wills seeks production of the following documents:[12]
(e)the legal advice commissioned by ASQA and provided by the Australian Government Solicitor, as requested by Mr Lavarch on 13 September 2017 in respect of SSG.
(f)an unredacted version of the email chain between Anthony Sheppard, Anthony Barkey and John Pritchard dated 22 November 2017, following receipt of the legal advice from the Australian Government Solicitor.
(g)a copy of any decision record and/or statement of reasons approving the Notice to give information issued under section 26 of the National Vocational Education and Training Regulator Act 2011 (Cth) to SSG dated 13 December 2017.
(h)an unredacted version of the email chain between David Garner, Irene Ioannakis, Anthony Sheppard, Damien Cox, John Pritchard and Christine Williams dated 5 April 2018.
(i)the briefing document(s) provided to the Commissioners following the receipt of the advice from the Australian Government Solicitor, as was requested in an email to John Pritchard and Anthony Barkey dated 15 September 2017, following the decision of Mr Lavarch on 13 September 2017.
[12] The Other Party’s Submissions for Direction under Subsection 37(2) of the AAT Act, dated 5 June 2020, page 8, paragraph 40.
In its submission the Other Party refers to an internal ASQA communication of 15 September 2017 which stated that the Commissioners decided to seek AGS’ review of the process and materials relating to this matter and brief Commissioners on the advice at a future meeting.[13]
[13] The Other Party’s Submissions for Direction under Subsection 37(2) of the AAT Act, dated 5 June 2020, page 8, paragraph 43.
There is nothing in the submissions of the Other Party in support of the application that suggest that the material sought in respect of this category of documents actually related in any way to the issue of compliance with Standard 7.1.[14]
[14] Standards for Registered Training Organisations (RTOs) 2015.
Nevertheless, since compliance with Standard 7.1 is itself a matter to be taken into account with respect to registration of the organisation, it may be the case that consideration of the application of Standard 7.1 forms part of the material which is sought by the Other Party under this category.
I am satisfied that the documents sought under this category may be relevant. I direct that the respondent lodge documents under these categories with the Tribunal on or before 1 July 2020. I direct that the documents in respect of which the Respondent claims privilege be placed in a sealed envelope and not disclosed to the applicant or to the other party without the leave of the Tribunal. At the hearing of this matter, I will hear the parties in respect of any claim for privilege in respect of this category of documents.
I certify that the preceding 25 (twenty -five) paragraphs are a true copy of the reasons for the decision herein of Deputy President I. Hanger AM QC
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Associate
Dated: 24 June 2020
Date of hearing: 1 June 2020 Date final submissions received: 11 June 2020 Counsel for the Respondent: S. Wright Solicitors for the Respondent: Australian Government Solicitor Counsel for the Other Party: P. Nolls Solicitors for the Other Party: Minter Ellison
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