Smith v State Training Board - [2021] WASCA 190

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   SMITH -v- STATE TRAINING BOARD [2021] WASCA 190
CORAM:   BUSS P
MURPHY JA
MITCHELL JA

HEARD:   15 SEPTEMBER 2021
DELIVERED          :   28 OCTOBER 2021
FILE NO/S:   CACV 113 of 2020
BETWEEN:   SIMON SMITH
Appellant
AND
STATE TRAINING BOARD
First Respondent
THE ATTORNEY GENERAL
Second Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   KENNETH MARTIN J
Citation: SMITH -v- STATE TRAINING BOARD [2020] WASC 394
File Number            :   CIV 3096 of 2019

Catchwords:

Appeal - Administrative law - Decision by Training Accreditation Council of Western Australia to cancel registration of appellant's corporation as a registered training provider - Decision by State Training Board declining to hear and determine appellant's attempted appeal against Training Accreditation Council's cancellation decision - Appellant's application for judicial review of State Training Board's decision dismissed at first instance - Whether primary judge erred in dismissing appellant's judicial review application

Statutory interpretation - Proper construction of s 58G(2) of Vocational Education and Training Act 1996 (WA) - Scope of right to appeal to State Training Board

Legislation:

National Vocational Education and Training Regulator Act 2011 (Cth)

Standards for VET Regulators 2015 (Cth)
Vocational Education and Training (General) Regulations 2009 (WA), reg 8, reg 19(1), reg 30(1)(c)

Vocational Education and Training Act 1996 (WA), s 13, s 58B, s 58G, s 67(1)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
First Respondent	:	No appearance
Second Respondent	:	A J Sefton SC

Solicitors:

Appellant	:	In person
First Respondent	:	No appearance
Second Respondent	:	State Solicitor's Office

Case(s) referred to in decision(s):

Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405
Erujin Pty Ltd v Jacob [2018] WASCA 212; (2018) 53 WAR 452
Smith v State Training Board [2020] WASC 394

JUDGMENT OF THE COURT:

Introduction

This is an appeal against the orders of Kenneth Martin J dismissing the appellant's (Mr Smith's) amended application for judicial review dated 10 January 2020. Written reasons were published in Smith v State Training Board[1] (primary decision).
[1] Smith v State Training Board [2020] WASC 394.
By his judicial review application, Mr Smith contended that there was jurisdictional error in the decision of the first respondent, the State Training Board (Board), in declining to hear and determine an appeal by Mr Smith in relation to a decision of the Training Accreditation Council of Western Australia (Council).[2] Mr Smith had sought to appeal to the Board the Council's decision of 27 September 2018 to cancel the registration of his corporation, RPL Central Pty Ltd trading as Advanced Skill Recognition Initiative (RPL), as a 'registered training provider' (Cancellation decision).[3] The Council's Cancellation decision was made pursuant to s 58B of the Vocational Education and Training Act 1996 (WA) (VET Act).
[2] Primary decision [1].
[3] Primary decision [2].
By email dated 22 October 2018, Mr Smith sought to invoke statutory rights to appeal to the Board against the Cancellation decision under s 58G of the VET Act.[4] Relevantly, Mr Smith contended, in effect, that the Council had breached certain standards under a Commonwealth legislative instrument which he said were applicable.[5] The Commonwealth instrument relied on by Mr Smith was the Standards for VET Regulators 2015 (Cth) (Commonwealth Standards for VET Regulators), made pursuant to s 189 of the National Vocational Education and Training Regulator Act 2011 (Cth) (Commonwealth Act).
[4] Primary decision [2].
[5] Primary decision [30] - [31].
On 31 January 2019, the Board, in effect, advised Mr Smith that in the circumstances there could be no appeal under s 58G of the VET Act, and that it would not proceed to review the asserted appeal.[6]
[6] Primary decision [5]. See also primary decision sch 1.
The underlying legal issue in the primary proceedings was whether Mr Smith had a right to appeal to the Board under s 58G(2) of the VET Act against the Council's Cancellation decision.[7] The primary judge found that there was no jurisdictional error by the Board.[8] His Honour reached that conclusion, in effect, on the bases that (1) on the proper construction of s 58G(2) of the VET Act, the appeal right did not extend to alleged breaches of the Commonwealth Standards for VET Regulators, and (2) Mr Smith's email to the Board on 22 October 2018 'did not engage with the statutory requirement … to state "grounds of appeal"'.[9]
[7] Primary decision [82].
[8] Primary decision [83].
[9] Primary decision [48], [86], [89], [91] - [93].
In this appeal, Mr Smith seeks orders to the effect that the decision of the primary judge be set aside, and that orders be made in the terms originally sought in his judicial review application. Mr Smith also asks this court to make a number of declarations, including in relation to the 'injustice' he claims to have suffered and 'any damages arising regarding such injustices'.[10]
[10] WB 12.
Mr Smith also filed an application on 2 September 2021 seeking to adduce further evidence in the appeal, being (1) correspondence he sent to the State Solicitor's Office dated 10 and 11 February and 2 May 2021 (with attachments), and (2) a screenshot of the last page of the Board's 2020 Annual Report.
Mr Smith is a litigant in person. The Board filed a notice as the first respondent indicating that it did not wish to take part in the appeal.[11] The Attorney General of Western Australia (Attorney General) was granted leave to intervene in the primary proceedings and took part in this appeal.[12] For the reasons which follow, the appeal should be dismissed.

Chronology of events[13]

RPL's application for registration: 2010 - 2015

[11] WB 2.

[12] WB 3.

[13] These background matters are primarily drawn from sch 1 of the primary decision. In addition, reference has been made to events common to both Mr Smith's chronology and the Attorney General's reply chronology in this appeal.

On 22 July 2010, RPL applied to be registered under s 58B of the VET Act as a registered training provider.
On 28 August 2014, the Council decided not to register RPL as a registered training provider in WA pursuant to s 58B of the VET Act.
On 7 October 2015, the Board wrote to RPL under the heading 'Outcome of review of appeal against a decision of the [Council]'. The Board advised, in effect, that it had resolved that RPL should be registered as a registered training provider in WA, subject to meeting the requirements for registration.[14]

Reduced Scope decision: November 2015

[14] Primary decision [53]; GB 99 - 100.

On 6 November 2015, the Council wrote to RPL and advised that many of the qualifications listed in RPL's original application had been 'superseded', in that they had ceased to be approved Vocational Education and Training (VET) courses or qualifications.[15] In the letter, the Council proposed a new 'scope of registration', substituting the superseded qualifications with their closest current equivalents (Reduced Scope decision). By reg 7(1) of the Vocational Education and Training (General) Regulations 2009 (WA) (VET Regulations), the term 'scope of registration' refers to the approved VET courses for which the provider is authorised to provide training and/or assessments by the provider's registration, and the approved VET qualifications and prescribed VET qualifications that the provider is authorised to confer by the provider's registration.
[15] GB 107 - 108.
The Council's letter of 6 November 2015 also foreshadowed an audit in the first six months of registration in accordance with the condition on RPL's registration.

Registration: 1 August 2016

On 1 August 2016, RPL was registered as a registered training provider under the VET Act, subject to a number of conditions.[16]

Mr Smith's letter dated 2 August 2016

[16] Primary decision [56], [78].

On 2 August 2016, Mr Smith sent an email to (among others) the Council, which included the following:[17]
[17] GB 134 - 135.
LETTER OF DEMAND
DEMAND TO REMOVE PURPORTED RTO:52810 ILLEGALLY BEARING MY NAME AND TRADEMARK - AND ILLEGAL SCOPE NOT COVERING MY FEES PAID AND AUDIT OVERTURNED AS REPRESENTED IN OCTOBER 2015
LEGAL ACTION PENDING
…
I AM ALSO ADVISING THAT I GIVE NO PERMISSION TO USE MY REGISTERED TRADEMARK RPL CENTRAL IN THIS PURPORTED RTO AND DEMAND YOU REMOVE ME AS A PURPORTED CEO FROM THIS QUASI RTO…
…
I TAKE NO OWNERSHIP OF THIS RTO. I AM NOT THE CEO. I AM NOT RESPONSIBLE FOR IT.

Further correspondence: August 2016 - September 2016

On 11 August 2016, the Council wrote to Mr Smith advising that the email they received on 2 August 2016 appeared to indicate that he wished to cancel the registration of RPL as a registered training provider.[18] In the letter, the Council asked Mr Smith to confirm in writing within seven days whether he wished to cancel the registration of RPL.
[18] GB 145 - 146.
On 15 September 2016, following an inquiry by Mr Smith, the Chairman of the Council wrote to Mr Smith and RPL, concerning the reduced scope of RPL's registration. The letter relevantly stated:[19]
[19] Primary decision [57]; GB 154 - 155.
The Council was required to give effect to the Board's decision, including the condition that [RPL] be audited within 6 months of registration. The Council had no discretion to remove or alter the condition that was imposed by the Board, or to impose any other condition on the registration.
In accordance with the Board's decision, [RPL] was registered as a training provider, with effect from 1 August 2016.
[RPL's] scope of registration
I note that you have queried why the scope of [RPL's] registration does not include all of the courses or qualifications included on [RPL's] original registration application.
Under regulation 7(1) of the Vocational Education and Training (General) Regulations 2009 (WA), a registered training provider's scope of registration is defined to mean:
(a)the 'approved VET courses' for which the provider is authorised to provide training or assessments or both by the provider's registration; and
(b)the 'approved VET qualifications' and prescribed VET qualifications that the provider is authorised to confer by the provider's registration.
A number of the qualifications within [RPL's] original application have been superseded; that is, they are not currently approved VET qualifications or approved VET courses.
Therefore, given the requirements of the Vocational Education and Training (General) Regulations 2009 (WA), [RPL's] scope of registration cannot include all of the qualifications and courses in [RPL's] original application.
The Council could only include those courses and qualifications which are presently 'approved' for the purposes of the VET Act; that is, those courses set out in the Delivery Profile attached to my letter dated 21 July 2016.
The Council has no discretion to register [RPL] to provide courses or qualifications which are not approved VET courses or approved VET qualifications.
The scope of registration is, therefore, not a matter which the Council is authorised to negotiate with you.
I trust that this clarifies the position of the Council in relation to this matter.
Please note that the Council will not be entering into further debate or correspondence with you regarding the issues referred to in your emails.

Correspondence: 2017

On 21 March 2017, the Council emailed RPL advising that RPL had not met its obligations to report its 2016 training activity data to the National Centre for Vocational Education Research.[20]
[20] GB 172.
On 12 April 2017, the Council wrote to Mr Smith requesting that he nominate a location in the Perth metropolitan area where an audit may take place.[21]
[21] Mr Smith's chronology, item 130; Attorney General's reply chronology, item 7; GB 174 - 175.
On 30 June 2017, an email was sent to RPL attaching an invoice of the annual fee for registration with the Council.[22] An annual registration fee is required to be paid under reg 15 of the VET Regulations on the first anniversary of the registration.
[22] GB 185.
On 11 September 2017, a Council representative sent Mr Smith an email titled 'FINAL NOTICE Overdue Fee - RPL Central Pty Ltd', which attached an invoice for RPL's annual registration fee which was said to have been 'due on 13 July 2017'. The email identified an earlier reminder notice dated 12 August 2017, and added:[23]
According to our records, the invoice for Annual Fee has not been paid. Could you please arrange payment of this account as soon as possible.

Foreshadowed cancellation: March - August 2018

[23] Primary decision [72]; GB 205.

On 26 March 2018, another Council representative sent a letter to Mr Smith referring to its records as indicating that RPL's annual registration fee was unpaid, and referring to a 'post initial audit'. The letter warned Mr Smith of a potential suspension or cancellation of RPL's registration under regs 19(1)(d) and 19(1)(g) of the VET Regulations.[24]
[24] GB 211 - 212.
On 10 July 2018, the Council sent Mr Smith a letter advising that it had still not received payment of RPL's annual fee, nor the information required to plan an audit.[25] The Council advised that it would now consider whether to suspend or cancel RPL's registration, and invited written submissions from Mr Smith as to whether the grounds for such suspension or cancellation were made out.[26]
[25] GB 238 - 239.
[26] Mr Smith's chronology, item 174; Attorney General's reply chronology, item 11; GB 239.
By letter dated 20 August 2018, the Council wrote to Mr Smith advising that it had not received payment of RPL's annual fee or evidence of compliance with relevant registration standards, and outlined the proposed cancellation of RPL's registration as a registered training provider.[27]

Cancellation of RPL's registration: September/October 2018

[27] GB 243 - 244.

On 27 September 2018, the Council made the Cancellation decision on the stated grounds that RPL failed to comply with the requirements in regs 19(1)(e) (where the provider has contravened a condition of its registration) and 19(1)(g) (where the provider has not paid an annual fee) of the VET Regulations.
On 1 October 2018, the Council wrote to Mr Smith relaying the Cancellation decision as follows:[28]
[28] Primary decision [66]; GB 40 - 41.
POST INITIAL AUDIT AND UNPAID ANNUAL FEE
I refer to previous correspondence from the [Council] to you concerning the above matter, and in particular to the letter dated 20 August 2018.
At its 260th meeting held on 27 September 2018, the Council considered whether it was appropriate to cancel the registration of [RPL], having regard to the failure of [RPL] to pay the annual fee and provide the information requested in order to facilitate the planning of the Post Initial Audit. The Council also considered [RPL's] written response dated 20 August 2018, 12 September 2018, 17 September 2018, 19 September 2018 and 20 September 2018 and your presentation to the Council at its meeting on 27 September 2018.
In line with the process outlined in the Council's Policy and Procedure for the Application of Sanctions …, the Council decided to cancel the registration of [RPL] under section 58B of the Vocational Education and Training Act 1996 on the grounds that the RTO failed to comply with the requirements of regulation 19(1)(e) and (g) of the Vocational Education and Training (General) Regulations 2009 as follows:
(i)failure by [RPL] to comply with a condition to which its registration was subject; that is, failure to establish with the relevant regulator within 6 months of registration that it meets the current requirements for registration;
and
(ii)failure by [RPL] to pay the annual fee required under regulation 15 of the Vocational Education and Training (General) Regulations 2009.
…
This decision takes effect as at 23 October 2018 in accordance with section 58F of the Vocational Education and Training Act 1996 …
…
At the point of cancellation, your organisation will no longer be able to provide nationally recognised training and your RTO's registration details will be removed from the National and State databases. All references to your organisation as an RTO should be removed, including advertising materials, published material and signage.

Mr Smith's email dated 22 October 2018 to the Board

On 22 October 2018, Mr Smith sought to appeal to the Board the Council's decision to cancel RPL's registration as a registered training provider under section 58G of the VET Act.[29] The 'long email' by which Mr Smith attempted to do so was set out in full in schedule 2 of the primary decision. Relevantly, Mr Smith's email to the Board included the following:[30]
[29] Primary decision [67] - [68]. See GB 47 - 50.
[30] Primary decision [68]; GB 47 - 48.
RE: Appeal under s58G of the Vocational Education and Training Act 1996 on multiple questions of law from the [Council]
Dear State Training Board,
It has been a long and sad journey. Since I won the last appeal I have been waiting for compliance from the [Council] to execute their obligations under the appeal, and I have constantly made complaints 'on deaf ears'.
I have not been treated as a CEO, acted as a CEO, taken part as a CEO, been given any natural justice in the initial registration process which should have occurred in accordance with the instruments, instructions, and the [Commonwealth Standards for VET Regulators], and the [Council] have breached all the same laws as in the original appeal and more.
I seek to summarise the breaches and follow through with the documentation that follows that clearly shows a complete misunderstanding again of:
•The Audit Model;
•Obligations of Natural Justice;
•Recognition of Prior Learning;
•Our Assessment Process;
•The New Law; and what a de novo decision means;
•Administration Law;
•Competition and Consumer Law;
•Compliance with the Public Administration Act;
•Compliance with the Public Disclosure Act;
•Misfeasance in Public Office;
•Crimes under the Criminal Code (impersonation, false documents);
•Complete disregard for statutory obligations and procedural fairness;
•A continuation of their want and desire to never allow me to begin trading or have any choice in how this RTO was to be setup (in complete breach of the Standards) and consistent with one of their original meetings in 2011 where they held a meeting to treat our RTO NOT in accordance with the AQTF and decided they could not do that;
•Complete resistance to communicate with what they believe to be a 'stakeholder';
•Deceit, lies and misinterpretation of the Act and Regulations;
•Lack of communication, adherence to the 'fair hearing' principle[.]
Mr Smith concluded his email of 22 October 2018 by stating:[31]
My position is, I have never been registered in accordance with the new law, never had a say in the process of Registration, no statutory contract has been created in accordance with law and I seek a declaration stating such.
…
Please see enclosures, and I hereby appeal the decision. It is important to note that the financial part of the decision is only appealed on the basis of a 'chain reaction'. But for the [Council] complying with providing me the RTO as per the appeal there would be no issue in payment of this fee. My counter argument is that they kept all prior monies for 250 Qualifications without any breakdown and effectively robbed me to provide me 93, however I do not see it as a provision of an RTO and never have.
I am awaiting compliance with the original appeal and have been for years and tried to mediate over and over - made Public Interest Disclosures only to be told that their Public Interest Officer is not as named on their website.
This has been the biggest injustice of my life.

The Board's letter to Mr Smith of 31 January 2019

[31] Primary decision [70]; GB 50.

On 31 January 2019, the Board sent a letter to Mr Smith advising that it was 'unable to proceed to review' his attempted appeal of the Council's decision to cancel RPL's registration. The letter provided:[32]
[32] Primary decision [21]; GB 12.
APPEAL AGAINST A DECISION OF THE TRAINING ACCREDITATION COUNCIL: MR SIMON SMITH - RPL CENTRAL PTY LTD
The State Training Board has sought legal advice for your appeal lodged on 22 October 2018 relating to a decision of the [Council] made on 27 September 2018 to cancel the registration of [RPL].
The legal advice was to determine whether the appeal met the conditions required by section 58G of the Vocational Education and Training Act 1996 (the VET Act).
The legal advice states that the Council's decision under section 58B of the VET Act relied on Regulation 19(1)(e) and (g) of the Vocational Education and Training (General) Regulations 2009 as follows:
•failure by [RPL] to comply with a condition to which its registration was subject; that is failure to establish with the relevant regulator within 6 months of registration that it meets the current requirements for registration; and
•failure by [RPL] to pay the annual fee required under regulation 15.
Regulation 19 does not require [the Council] to apply any guidelines in considering whether or not to cancel a registered provider's registration. As a consequence there can be no appeal under section 58G of the VET Act.
The State Training Board is unable to proceed to review your appeal.

Grounds of appeal and parties' submissions

Overview

Mr Smith appeals against the primary decision on two grounds to the following effect:[33]
1.The primary judge erred by making a decision on the merits and thereby misinterpreting the role of the Supreme Court in proceedings for a judicial review.
2.The primary judge erred by not recognising that an appeal right existed pursuant to s 58G(2) of the VET Act.

Ground 1

[33] WB 5 - 7.

Ground 1 (as particularised) reads:
1.Did the [primary judge] err by misinterpreting the role of the Supreme Court in a judicial review?
a.The Court is not entitled to make a review 'on the merits'. Rather it can only decide whether the method by which the original decision-maker made the decision was lawful.
b.The Court was only entitled to find that under s 58G of the [VET Act], [Mr Smith] was denied the 'statutory right' to be granted the appeal, where it would then proceed to demonstrate the grounds that in making the decision appealed, the Council erred in its application of, or failed to apply criteria or procedures in, guidelines it was required to apply under section 13 or by the regulations.
c.In doing so the [primary judge] made an error of law.
d.The [primary judge] ruled on inconsistent presumptions of merit instead of only the question of law of statutory interpretation, causing him to make errors of fact.
e.An example of this is in paragraph 60 of his reasons, 'The Council's reduced scope confirmation … was not then a subject of any challenge by Mr Smith under the [VET Act], or otherwise'. This speaks to the merits of the appeal, not the decision to refuse an appeal and so was not brought up at or relevant to the hearing.
f.[Mr Smith] made many attempts to challenge, mediate, complain, and question from the time the 2015 appeal succeeded until the registration was cancelled only to be ignored and/or lied to as stated in [Mr Smith's] affidavit in response dated 15/05/2020 (paragraphs 8 ‑ 16) and its annexures marked AN4 and AN5 and evident in the Draft Chronology.
g.It is also quoted in paragraph 68 of the Justice's reasons 'Since I won the last appeal I have been waiting for compliance from the [Council] … and I have constantly made complaints "on deaf ears"'.

Mr Smith's submissions

Mr Smith's written submissions in respect of ground 1 were as follows:[34]
1.The appeal right under section 58(G) is in legislation, not subject to discretion, not based on presumed merits and is absolute because it exists and has existed for decisions affecting [a registered training provider's] potential or actual registration.
2.There is no other lawful remedy than for the respondent to allow the appeal, so [Mr Smith] has an opportunity to demonstrate a decision of the Council to determine whether they failed to apply criteria or procedures in guidelines it was required to apply under section 13 or by the regulations.
3.The [primary judge's] only power was to declare the error of law and send it back to the [Board].
4.Had the [primary judge] made simple inquiries, asked the opposing counsel, looked at any [Board] annual report or the most obvious, the [Council's] responsibilities under the [Commonwealth Standards for VET Regulators], he would have quickly come to the obvious realisation that his role in this appeal was limited strictly to confirming the established fact that an application was made under section 58(G).
5.Instead, he went above his powers and ruled on the merits of the appeal itself, rather than the right of appeal.

Attorney General's submissions

[34] Mr Smith's written submissions, pars 1 - 5; WB 8.

The Attorney General emphasised that the relevant decision under review in the primary proceedings was the decision of the Board that it had no jurisdiction to hear RPL's purported appeal of the Council's Cancellation decision.[35]
[35] Attorney General's written submissions, par 75; WB 30.
The Attorney General acknowledged that, while there were passages of the primary decision which commented on the substantive correctness of the Council's Cancellation decision,[36] those remarks were made (1) in obiter, and (2) in response to particular submissions made by Mr Smith at first instance.[37] The Attorney General submitted that, while such comments were 'perhaps not strictly necessary', it was open to the primary judge to address Mr Smith's submissions in that regard, for completeness. Therefore, the Attorney General submitted, they did not amount to an error of law, nor did they affect the two alternative bases for the primary judge's decision.[38]

Ground 2

[36] Referring to primary decision [71] - [80], [90].

[37] Referring to ts 25 - 26.

[38] Attorney General's written submissions, par 76; WB 30.

Ground 2 (as particularised) reads:
2.The [primary judge] erred by not recognising that the appeal right exists in conformance with section 3(a), 3(b) and 3(c) of section 58G.
a.By not allowing the appeal and unlawfully attempting to rule on presumed facts and merits the [primary judge] made an error of law by not giving [Mr Smith] his statutory right to demonstrate that the Council erred in its application of, or failed to apply criteria or procedures in, guidelines it was required to apply under section 13 or by the regulations in accordance with Subsection 58G(1) which is both a statutory and natural justice requirement.
b.The [primary judge] failed to acknowledge that this appeal right has existed for over a decade and the yearly counts have been reported accordingly in the [Board's] annual reports and is standard practice both in WA, every other self-delegating state, and the Commonwealth.
c.This failing is demonstrated in paragraph 93 'legislation must be interpreted within its local environment, by reference to its text, context and objectively assessed legislative purpose'.
d.In paragraphs 30 to 32, the [primary judge] describes [Mr Smith's] argument that Commonwealth legislation are incorporated and should be taken into consideration when allowing an appeal but does not address this argument beyond what is stated in paragraph 93.

Mr Smith's submissions

Mr Smith's written submissions in respect of ground 2 were as follows:[39]
[39] Mr Smith's written submissions, pars 6 - 15; WB 9 - 10.
6.The [primary judge] made a contradictory finding that was not open to him purporting to state that an appeal right did not exist on a registration decision when the exact same appeal right was used to appeal the initial registration decision (AN-1 annexed to Affidavit in response dated 15th May 2020 in previous case).
7.[Mr Smith] states that the [primary judge] is simply wrong at law, has already exercised this appeal right in the jurisdiction on a different decision affecting registration and also throughout the country under mirroring state and commonwealth laws.
8.The [primary judge] failed to find in favour of the Commonwealth statutory definitions and relationships to the State Act, despite there being a clear reliance and reference to the [Commonwealth Standards for VET Regulators].
9.[Mr Smith's] grievances of how the council erred in its application of or failure to apply criteria or procedures in guidelines it was required to apply under section 13 or by the regulations are matters of fact that [Mr Smith] has a natural justice statutory right to demonstrate and it was not the [primary judge's] role to pre-empt or prejudice this right.
10.The [Council's] policies and procedures specifically states, 'If you are dissatisfied with a Council decision and believe the Council has erred in its application of, or failed to apply criteria or procedures as outlined in the Council's established policies and procedures you may choose to lodge an appeal to the [Board]'.
11.[Mr Smith] intends to argue breaches to the [Commonwealth Standards for VET Regulators], administration laws and requirements (as [Mr Smith] did in the 2015 [Board] appeal) and several other guidelines which are plainly obvious on the [Council's] website.
12.The [Council] advertises their guidelines and registration appeal rights on their website as well as the obligation to comply with the national standards and the Act.
13.[The Council] state their regulatory approach has been developed in line with the approach described in the [Commonwealth Standards for VET Regulators] which aims to ensure '… the integrity of nationally recognised training by regulating [registered training providers] … using a risk-based approach that is consistent, effective, proportional, responsive and transparent'.
14.The [primary judge] seemed to put little to no weight on the [Commonwealth Standards for VET Regulators] stating in his reasons at paragraph 33, 'the Council 'must have regard to' (the Standards for VET Regulators - reg 8(1)), in contrast to what by reg 8(2) the Council 'must apply' namely the local 'registration standards' and 'accreditation standards' (as defined)'.
15.This implies that if they are at odds, more weight and consideration should be put on the State Legislation over Federal, but [Mr Smith] argues they have never been at odds and have always been written in this way, even prior to the Commonwealth Act existing, that there is a right of appeal. (footnotes omitted)
Mr Smith made oral submissions broadly to the same effect. In oral submissions, Mr Smith emphasised that the construction he advanced with respect to s 58G(2) of the VET Act reflected his experience with other appeals, and was consistent with a statement on the Council's website.[40]

Attorney General's submissions

[40] Appeal ts 12 - 19.

The Attorney General submitted that ground 2 should be dismissed for essentially three reasons:[41]
1.On the proper construction of the VET Act and the VET Regulations:[42]
(a)the appeal right under s 58G(2) of the VET Act was limited to grounds that, in making the decision appealed against, the Council erred in its application of, or failed to apply criteria or procedures in, guidelines it was required to apply under s 13 or by the VET Regulations; and
(b)the Commonwealth Standards for VET Regulators were not 'guidelines' within the scope of s 58G of the VET Act.
2.Alternatively, even if the Commonwealth Standards for VET Regulators were 'guidelines', they fall outside of the scope of s 58G(2) as they were not required to be 'applied' by the Council in making the decision.
3.In any event, Mr Smith did not validly initiate the Board's jurisdiction by specifying valid grounds of appeal against the cancellation decision.[43] Reference was made to a similar legislative requirement to state grounds of appeal in Erujin Pty Ltd v Jacob,[44] where Buss P and Beech JA said that the minister's function on the appeal was 'to respond to the case advanced by the appellant, and not to investigate the application at large'.[45]
[41] Attorney General's written submissions, par 44; WB 24.
[42] Attorney General's written submissions, par 45; WB 24.
[43] Attorney General's written submissions, par 46; WB 24.
[44] Erujin Pty Ltd v Jacob [2018] WASCA 212; (2018) 53 WAR 452.
[45] Erujin [132].

Legislative framework

The VET Act

The long title to the VET Act provides:
An Act to establish a vocational education and training system for the State, to constitute the State Training Board of Western Australia and the Training Accreditation Council, to provide for the establishment of colleges and other vocational education and training institutions, to provide for the training of people, such as apprentices, under training contracts with employers, and for related purposes.
Section 4 of the VET Act provides that the 'main objects' of the VET Act are:
(a)to establish a State training system for the effective and efficient provision of vocational education and training to meet the immediate and future needs of industry and the community;
(b)to provide for the registration of some providers of vocational education and training and the accreditation of some vocational education and training courses;
(c)to provide a means by which the State is able to meet its obligations under national arrangements relating to vocational education and training;
(d)to promote equality of opportunity to undertake vocational education and training;
(e)to provide for research and development for the purposes of vocational education and training;
(f)to allow for the operation of an open and competitive training market in this State;
(g)to provide for people, such as apprentices, to be trained for some occupations under training contracts with employers.
Section 13 of the VET Act provides:
13.Minister may issue guidelines
(1)This section applies to the Board, the Council and a public training provider.
(2)The Minister may, from time to time, issue guidelines, not inconsistent with this Act, to a body to which this section applies relating to -
(a)the functioning of the State training system; and
(b)the policy to be implemented and the procedures to be followed,
under this Act.
(3)The Minister may not issue guidelines to -
(a)the Board, with respect to the performance of its functions under Part 7A Division 2; or
(b)the Council, with respect to a particular application or matter that is to be determined by the Council.
(4)Guidelines issued under this section are to be followed by the body to which they are directed. (emphasis added)
The VET Act establishes both the Board (s 18) and the Council (s 25) as statutory entities.
Section 21 of the VET Act identifies the functions of the Board. These include, relevantly, to perform the functions it has under pt 7A div 2 ('Appeals against the Council's decisions').[46]
[46] Section 21(1)(d) of the VET Act.
Part 7A is headed 'Regulation of the provision of some vocational education and training' and comprises div 1 (General matters), div 2 (Appeals against the Council's decisions) and div 3 (Miscellaneous matters). Division 1 of pt 7A contains s 58A - s 58F.
Section 58A(1) makes it an offence, inter alia, for a person to claim or purport to provide an 'approved VET course' if the person is not a 'registered training provider'. A 'registered training provider' includes a training provider registered by the Council under pt 7A. An 'approved VET course' is defined to include a 'VET course that … is accredited by the Council under pt 7A'.
Section 58B, in div 1 of pt 7A, provides:
58B.Council may register training providers
Subject to the regulations, the Council, on an application by a person or on its own initiative -
(a)may register a training provider, either unconditionally or subject to conditions decided by the Council; and
(b)if a registered training provider's registration was granted by the Council, may vary, suspend or cancel the registration; and
(c)if a registered training provider's registration was not granted by the Council, may -
(i)order the provider not to operate in this State; or
(ii)by order, impose conditions restricting the provider's operations in this State. (emphasis added)
Section 58C provides that 'subject to the regulations', the Council may accredit or cancel the accreditation of VET courses.
Section 58E provides that the Council may cancel VET qualifications conferred by a registered training provider in certain circumstances.
Section 58G in div 2 of pt 7A ('Appeals against the Council's decisions') provides for appeals to the Board as follows:[47]
[47] The process for appeals is set out in s 58H - s 58J. Section 58H provides that the Board must refer the decision under an appeal to an independent review panel, comprised of people with expertise in the area of the subject matter of the appeal. Sections 58I and 58J relate to the role of the review panel's recommendations in the determination of an appeal.
58G.Appeals against the Council's decisions
(1)A person who is dissatisfied with a decision of the Council made under section 58B, 58C or 58E may appeal against it to the Board.
(2)An appeal can be only on the ground that, in making the decision appealed against, the Council erred in its application of, or failed to apply criteria or procedures in, guidelines it was required to apply under section 13 or by the regulations.
(3)An appeal against a decision of the Council must -
(a)be commenced by giving the Board a written notice stating the decision and the grounds of the appeal; and
(b)be commenced within 21 days after the date on which the appellant was notified of the decision; and
(c)be conducted in accordance with the regulations.
(4)The Board must give the Council a copy of any appeal notice. (emphasis added)
Section 67(1) of the VET Act provides that the Governor may make regulations to give effect to the purposes of the VET Act. In this regard, s 58 of the VET Act (relevantly) provides:
58.Regulations for this Part
Without limiting the generality of section 67(1), regulations made under section 67 for the purposes of this Part may do any of the following -
…
(c)prescribe criteria (including standards and guidelines) that the Council must or may take into account when deciding an application made to it;
(d)prescribe the conditions that the Council may impose when registering a training provider, including but not limited to conditions that limit -
(i)the approved VET courses that the provider can provide;
(ii)who the provider can assess for approved VET qualifications or prescribed VET qualifications;
(iii)the approved VET qualifications or prescribed VET qualifications that the provider can confer[.] (emphasis added)

The VET Regulations

Regulation 8 provides:
8.Council to have regard to, and apply, certain standards
(1)In performing its functions under Part 7A of the [VET Act], the Council must have regard to the Standards for VET Regulators.
(2)In performing its functions under Part 7A of the [VET Act], the Council must apply -
(a)the registration standards; and
(b)the accreditation standards. (emphasis added)

The Standards for VET Regulators referred to in reg 8(1), to which the Council must 'have regard', are defined in reg 7(1) as, in effect, the Commonwealth Standards for VET Regulators.[48]
[48] Regulation 7(1) relevantly provides:
Standards for VET Regulators has the meaning given in the Commonwealth Act section 189.
The standards referred to in reg 8(2), which the Council 'must apply', were defined in reg 7(1), at the relevant time, as:
accreditation standards means the AQTF 2007 Standards for Accredited Courses (published by the Commonwealth of Australia 2007);
…
registration standards means the Standards for NVR Registered Training Organisations made under the Commonwealth Act section 185[.]
Regulation 12(7) provides that:[49]
[49] Mr Smith refers to this regulation in his email purporting to appeal the Council's Cancellation decision: GB 263.
If the Council decides to register a training provider, it must do the following -
(a)include this information on the register -
(i)the provider's personal details;
(ii)the provider's scope of registration;
(iii)any condition of the registration imposed under regulation 13(3)(c);
(b)give the applicant a registration document;
(c)give the applicant written notice of each condition to which the registration is subject under regulation 13.
Regulation 15 provides:
15.Annual fees payable by registered training providers
A WA registered provider must pay an annual fee set under regulation 23 on or before each anniversary of the provider's registration or its renewal.
In relation to cancelling a registered training provider's registration under s 58B of the VET Act, reg 19(1) of the VET Regulations relevantly provides that:
19.Suspending or cancelling registration
(1)Under section 58B of the [VET Act], the Council may suspend or cancel a WA registered provider's registration if it is satisfied as to any of these matters -
…
(e)the provider has contravened a condition to which its registration is subject;
…
(g)the provider has not paid any annual fee in accordance with regulation 15. (emphasis added)
Regulation 25 relates to audits conducted by the Council:
(1)An inquiry conducted under section 58D of the [VET Act] may be in the form of an audit.
(2A)The Council may conduct an audit at any time on a training provider if the Council thinks fit having regard to the [VET Act] and the relevant registration requirements.
(2B)A training provider must cooperate with the Council in its conduct of an audit and provide any relevant information that the Council requests.
(2)An audit must comply with the [Commonwealth Standards for VET Regulators] to the extent that they relate to audits.
(3)A contravention of subregulation (2) does not affect the validity of the audit if the contravention -
(a) does not substantially affect the outcome of the audit; or
(b) arises out of an inconsistency between the [Commonwealth Standards for VET Regulators] and written laws.
Regulation 30(1)(c) of the VET Regulations provides, with respect to the accreditation of a VET course:
30.Accrediting VET Courses
(1)The Council must not accredit a VET Course unless -
…
(c)in the case of a VET course for a prescribed VET qualification - it is satisfied the course complies with the guidelines in the AQF for the qualification.

Commonwealth Act and Commonwealth Standards for VET Regulators

As noted earlier, reg 8(1) of the VET Regulations provides that, in performing its functions under pt 7A of the VET Act, the Council must have regard to the 'Standards for VET Regulators', ie, the Commonwealth Standards for VET Regulators.
The six standards of the Commonwealth Standards for VET Regulators are as follows:
Standard 1. The VET Regulator effectively and efficiently regulates [Registered Training Organisations].
…
Standard 2. Courses are accredited in accordance with the Standards for VET Accredited Courses.
…
Standard 3. The VET Regulator communicates effectively and implements a transparent complaints process to enhance regulatory practices and outcomes.
…
Standard 4. The VET Regulator reports to and responds to requests from the Industry and Skills Council or its delegate.
…
Standard 5. The VET Regulator evaluates and improves its regulatory performance and ensures that its delegates comply with the VET Regulator Standards.
…
Standard 6. The VET Regulator must be effectively and efficiently managed. (emphasis added)
'VET Regulator' is defined in the Glossary of the Commonwealth Standards for VET Regulators to mean the National VET Regulator and 'a body of a non‑referring State that is responsible for the kinds of matters dealt with under the VET legislation for that State'.
Part 1 of the Commonwealth Standards for VET Regulators is titled 'Preliminary' and provides that, in order to comply with a Standard, the VET Regulator must meet the requirements in each of the clauses listed under it. In relation to Standard 1, cl 1.10 (referred to by Mr Smith), provides that:
The VET Regulator makes decisions in a manner consistent with the principles of natural justice and procedural fairness.
To be compliant with Standard 2, the VET Regulator must meet the requirements in the following clauses:
2.1.The VET Regulator only accredits courses that comply with the Standards for VET Accredited Courses.
2.2.The VET Regulator:
a)provides advice to training package developing bodies on gaps in training packages identified as a result of its course accreditation activities; and
b)accredits courses that have been designed to meet a licensed or regulated outcome only if the accreditation application is supported by the relevant industry regulator/s.
2.3The VET Regulator ensures that its course accreditation assessors:
a)exercise their judgment in a manner which maximises consistent interpretation of the Standards for VET Accredited Courses, and the consistency of their assessment practice and outcomes; and
b)from 1 January 2016, meet the national competency requirements for course accreditation assessors specified in Schedule 1.
2.4.The VET Regulator makes decisions about accreditation that are consistent with the principles of natural justice and procedural fairness.
2.5.The VET Regulator provides general education and guidance materials to course owners to assist them to comply with the Standards for VET Accredited Courses.

Disposition

The disposition of the appeal turns fundamentally on the proper construction of s 58G(2) of the VET Act and, in particular, the scope for an appeal under that provision. That is exclusively a matter of law on which evidence, including of the kind Mr Smith sought to adduce on the appeal in his application of 2 September 2021, is irrelevant.
In order to succeed in the appeal, Mr Smith must establish that the construction of s 58G(2) of the VET Act for which he contends in ground 2 of the appeal is correct. Unless he does so, any alleged error in respect of ground 1 is immaterial to the ultimate disposition of the appeal.
Mr Smith's proposed construction of s 58G(2) of the VET Act is to the effect that the word 'guidelines' in s 58G(2) of the VET Act encompasses 'standards', including the Commonwealth Standards for VET Regulators. Mr Smith's construction is not correct.
Section 58G(2) of the VET Act provides, in effect, that an appeal may only be brought on the grounds that:
1.The Council erred in its application of 'guidelines' it was 'required to apply' under either s 13 of the VET Act or by the VET Regulations.
2.The Council failed to apply criteria or procedures in 'guidelines' it was 'required to apply' under either s 13 of the VET Act or by the VET Regulations.
It was common ground that there were no relevant 'guidelines' issued by the Minister under s 13.[50] Also, the only 'guidelines' referred to in the VET Regulations concern the accreditation of VET courses under s 58C of the VET Act, and not decisions under s 58B to cancel the registration of training providers.[51]
[50] Primary decision [45]. The only 'guidelines' issued by the Minister related to 'financial viability' of training providers: annexure SH1 of affidavit of S Hiraishi affirmed 23 December 2020; GB 31 - 37.
[51] Regulation 30(1)(c) of the VET Regulations.
The word 'guidelines' is used in the VET Act in both s 58G(2) and s 13. The VET Act refers to 'guidelines' in s 22(2), and distinguishes between 'guidelines' and 'standards' in s 58(c) and s 60(d). The two words are evidently not used by the legislature in the VET Act interchangeably.[52] The word 'standards' is absent from s 58G(2).
[52] Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405, 414.
Neither word is defined in the VET Act, and the two words are not synonymous in their ordinary meaning. The word 'guidelines' in its ordinary meaning is a statement which offers advice on the implementation of a policy; general instructions.[53] A 'standard' in its ordinary meaning refers to anything taken by general consent as a basis for comparison; an approved model.[54]
[53] Macquarie Dictionary online version.
[54] Macquarie Dictionary online version.
Further, s 58G(2) makes no reference to the Commonwealth Standards for VET Regulators.
There is nothing in the text of s 58G(2), read in the context of the VET Act as a whole, including its objects, which supports a construction that the Parliament has used the word 'guidelines' in s 58G(2) to denote 'standards', including the Commonwealth Standards for VET Regulators.
That conclusion is sufficient to dispose of the appeal. It is unnecessary to consider the other arguments raised by the Attorney General.

Conclusion and orders

The appeal should be dismissed. The orders should be:
1.The appellant's application filed 2 September 2021 is dismissed.
2.The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NF
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza
28 OCTOBER 2021