Smart City Vocational College Pty Ltd v Australian Skill Quality Authority
[2017] FCA 198
•10 February 2017
FEDERAL COURT OF AUSTRALIA
Smart City Vocational College Pty Ltd v Australian Skill Quality Authority [2017] FCA 198
File number: QUD 53 of 2017 Judge: RANGIAH J Date of judgment: 10 February 2017 Catchwords: PRACTICE AND PROCEDURE – application for interlocutory injunction to restrain publication of media release – judicial review of decision to cancel applicant’s registration – whether prima facie case – balance of convenience – public interest – application dismissed Legislation: National Vocational Education and Training Regulator Act 2011 ss 39(1) and 209 Cases cited: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 Date of hearing: 10 February 2017 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 12 Counsel for the Applicant: Ms DA Skenner Solicitor for the Applicant: Morgan Conley Solicitors Counsel for the Respondent: Mr G Del Villar Solicitor for the Respondent: Australian Government Solicitor ORDERS
QUD 53 of 2017 BETWEEN: SMART CITY VOCATIONAL COLLEGE PTY LTD ACN 084 423 585
Applicant
AND: AUSTRALIAN SKILL QUALITY AUTHORITY
Respondent
JUDGE:
RANGIAH J
DATE OF ORDER:
10 FEBRUARY 2017
THE COURT ORDERS THAT:
1.The application for an interlocutory injunction be dismissed.
2.Costs be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
EX TEMPORE REASONS FOR JUDGMENT
RANGIAH J:
The applicant has filed an amended originating application seeking judicial review of the following decisions or conduct of the respondent:
(a)on 30 January 2017 – to cancel the applicant’s registration under s 39 of the National Vocational Education and Training Regulator Act 2011 (“the Act”);
(b)on 6 February 2017 – to publish a media release; and
(c)on 7 February 2017 – to release particular information to a journalist.
The application presently before the Court is an application for an interlocutory injunction restraining the respondent from publishing a media release in the form proposed by the respondent. The form of the proposed media release is as follows:
Smart City Vocational College has registration cancelled 07 February 2017 The Australian Skills Quality Authority (ASQA) has cancelled the registration of Queensland- based training provider Smart City Vocational College Pty Ltd (SCVC, RTO ID 6494).
Chief Commissioner Mark Paterson said regulatory scrutiny of SCVC by ASQA officers had identified behaviour that was critically non-compliant with the requirements of the VET quality framework.
ASQA found SCVC did not have:
· a sufficient number of appropriately qualified trainers and assessors to deliver to the number of students enrolled across all qualifications, modes of delivery, and locations;
· sufficient learning resources to deliver to the number of learners enrolled across all qualifications, with respect to the RTO’s training and assessment strategies, locations, and mode of delivery provided; and
· sufficient facilities to continue to deliver in a face-to-face manner to those learners who have been enrolled in a face-to-face mode of delivery (either totally face to face, or blended).
“ASQA issued SCVC with a notice of intent in December inviting it to provide further evidence and information as to why its registration should not be cancelled. However, a review of the evidence provided indicated that the training provider was still non-compliant,” Mr Paterson said.
“ASQA has therefore taken the decision to cancel Smart City’s registration as a provider of VET services.”
The decision will take effect on 06 March 2017 unless the provider seeks a review of ASQA’s decision in the Administrative Appeals Tribunal (AAT).
SCVC was audited in 2015 as part of ASQA’s VET FEE-HELP Targeted Audit Project, in which regulatory scrutiny was applied to 22 registered training organisations (RTOs) that were also approved VET FEE-HELP providers.
On the basis of the 2015 audit finding, ASQA undertook further regulatory scrutiny of the provider in 2016 as part of its 2016 VET FEE-HELP Regulatory Strategy.
“Between May and November last year ASQA undertook regulatory scrutiny of 26 training providers which it – in collaboration with the Department of Education and Training - had identified as providers of concern,” Mr Paterson said.
Work to finalise this scrutiny is well-advanced but not yet complete. ASQA has already announced its decision to cancel the registration of ASCET Institute of Technology (RTO ID 20770). Any other regulatory decisions that ASQA takes will be published as necessary and a final report on the 2016 VET FEE-HELP strategy will be released at the end of the project.
(Underlining added.)
At the time the originating application was filed, the respondent had proposed to issue a media release in a different form, but it now proposes to publish the media release in the form set out above. The parts of the proposed media release that I have underlined are those which the applicant objects to. The applicant raises no objection to the remainder of the document. The applicant has now indicated that it is prepared to delete the word “critically” from the media release.
The issues in the application are:
(a)whether the applicant has demonstrated a prima facie case in the sense of a sufficient likelihood of success to justify preservation of the status quo pending trial; and
(b)the balance of convenience.
[See Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at 82]
The applicant submits that the respondent’s decision to cancel its registration under s 39 of the Act is invalid because the decision involved a denial of procedural fairness and because the respondent failed to take into account a relevant consideration, namely, evidence provided by the applicant.
The applicant also submits that the respondent’s decision to issue the media release was made under s 209 of the Act and that the decision is invalid because:
(a)the requirements of paras (a) to (c) of s 209(1) were not met;
(b)the respondent failed to take into account a relevant consideration, namely, that the applicant proposed to apply for merits review of the decision made under s 39 of the Act to the Administrative Appeals Tribunal;
(c)the respondent’s decision was fettered by its policy;
(d)the decision was unreasonable; and
(e)the decision was an abuse of power.
It is undesirable for me to say more than is absolutely necessary about the merits of the applicant’s case. It is enough to say that the merits do not justify an injunction when considered together with the balance of convenience.
The dispute between the parties concerning the form of the proposed media release is of limited scope. Since the respondent no longer intends to use the word “critically”, the applicant’s only objection is to the publication of the reasons for the cancellation decision. The applicant argues that upon merits review before the Administrative Appeals Tribunal, those reasons may well be overturned. The applicant claims that publication of the reasons will discourage students from enrolling and will cause it financial and reputational damage.
In my opinion, damage to the applicant may well be caused by publication of the fact that the applicant’s registration has been cancelled, something that the applicant does not object to. Publication of the reasons for the cancellation is unlikely to add much, if anything, to the damage that will otherwise be incurred. Further, the inclusion in the media release of information that the applicant intends to apply to the Administrative Appeals Tribunal for review and a stay of the decision will ameliorate the damage that may be caused.
The public interest must also be considered. Students considering enrolling with the applicant would no doubt wish to know not only that the applicant’s registration has been cancelled, but why it has been cancelled. That factor may well influence students’ decisions as to whether to enrol.
The balance of convenience does not favour the granting of an interlocutory injunction. The application for an interlocutory injunction will be dismissed.
I will reserve costs.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. Associate:
Dated: 3 March 2017
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