Smith v State Training Board
[2020] WASC 394
•2 NOVEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: SMITH -v- STATE TRAINING BOARD [2020] WASC 394
CORAM: KENNETH MARTIN J
HEARD: 22 SEPTEMBER 2020
DELIVERED : 2 NOVEMBER 2020
FILE NO/S: CIV 3096 of 2019
BETWEEN: SIMON SMITH
Applicant
AND
STATE TRAINING BOARD
Respondent
THE ATTORNEY GENERAL
Intervenor
Catchwords:
Judicial review - Decision by local Training Accreditation Council of Western Australia to cancel registration of applicant's corporation as registered training provider - Failure to comply with condition of registration - Failure to pay annual fee - Applicant aggrieved - Attempted invocation of appeal rights against Council's cancellation decision to State Training Board as a statutory appeal - State Training Board declines to receive or hear appeal on basis statutory appeal right said not engaged - Guidelines in regulations or issued by Minister by s 13 Vocational Education Training Act 1996 (WA) said to be irrelevant to cancellation decision as training provider registration - Appeal rights to State Training Board limited to cases of their non-application or misapplication by the Council
Legislation:
National Vocational Education and Training Regulator Act 2011 (Cth)
Standards for VET Regulators 2015 (Cth)
Vocational Education and Training (General) Regulations 2009 (WA)
Vocational Education and Training Act 1996 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Applicant | : | In person |
| Respondent | : | Submitting appearance |
| Intervenor | : | Ms R Panetta |
Solicitors:
| Applicant | : | In person |
| Respondent | : | Submitting appearance |
| Intervenor | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
Ashwin v Housing Authority [2019] WASC 144
Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616
Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; (2010) 239 CLR 53
KENNETH MARTIN J:
Introduction
Mr Simon Smith, acting in person, seeks judicial review under an amended application to this court of 10 January 2020. He contends for jurisdictional error in the decision of the respondent, the State Training Board (the Board), declining to hear and determine an appeal sought to be pursued by Mr Smith on behalf of his corporation, RPL Central Pty Ltd trading as Advanced Skill Recognition Initiative (RPL) (of which Mr Smith is the sole director). The decision which Mr Smith had sought to appeal to the Board was a decision of the Training Accreditation Council of Western Australia (the Council) of 27 September 2018.
The Council's decision of 27 September (notice of which was given to Mr Smith on 1 October 2018 and which took effect at 23 October 2018) was to cancel the registration of RPL as a registered training provider (RTP). That decision was made under s 58B of the Vocational Education and Training Act 1996 (WA) (the VET Act). Thereafter, Mr Smith, by his email to the Board of 22 October 2018, sought to invoke statutory appeal rights under s 58G of the VET Act against that cancellation decision of the Council against RPL.
By notice filed on 13 February 2020, the Board indicated that it did not intend to take part in these judicial review proceedings. It would abide the decision of the court, save as to costs. As there was then no active respondent within the application of Mr Smith for judicial review, the Attorney General of Western Australia sought leave to intervene. Leave was granted by Archer J on 19 February 2020.
The relevant decisions
Since 22 July 2010, when RPL had first applied to the Council to be registered as a training provider in WA, a saga of events and much communication has ensued as between Mr Smith, RPL, the Council and the Board.
As identified above, the Board's decision not to hear an appeal against the Council's decision is relevantly the subject of the current judicial review application. However, in my reasons that follow, it will be necessary to canvass additional events and decisions.
For ease of reference, I include a chronology table at Schedule 1 to these reasons. This table provides a brief summary, drawn from the applicant's and intervenor's affidavits filed in the proceeding and the applicant's original application for judicial review. In particular, I draw attention, for early orientation purposes, to:
1.The Council's reduced scope confirmation - being a decision of the Council, confirmed and communicated by letter to Mr Smith dated 15 September 2016, to reduce the scope of qualifications attached to RPL's registration. I elaborate in more detail on this decision and its consequential impacts at [56] - [60]; and
2.The Council's cancellation decision - being a decision of the Council, made on 27 September 2018 and relayed to Mr Smith by a letter dated 1 October 2018, to cancel RPL's registration (as a RTP). I provide further detail of this decision at [66].
The VET Act provisions
For introductory purposes it is necessary to appreciate the terms of s 58B and s 58G of the VET Act.
Both provisions are found within pt 7A of the VET Act, which carries a heading 'Regulation of the provision of some vocational education and training'.
Section 58B is within div 1 (General matters), whilst s 58G is found under div 2 (Appeals against the Council's decisions).
The Council and the Board are both statutory entities, established under provisions of the VET Act: see respectively s 25 and s 18.
By s 5 of the VET Act, references to the 'Council' are defined to mean the Training Accreditation Council. Similarly, references to the 'Board' are defined to mean the State Training Board.
As regards the Council and its accreditation role, s 58B 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)…
(b)if a registered training provider's registration was granted by the Council, may vary, suspend or cancel the registration; and
(c)…
Relevantly here, I am concerned with the Council's cancellation decision of 27 September 2018 made towards RPL to cancel its registration as an RTP under the VET Act.
It is helpful to appreciate that RPL had been registered as an RTP under the VET Act, effective 1 August 2016. To that end I refer to annexure 'AN5' to Mr Smith's affidavit sworn 15 May 2020, in support of the present application (Mr Smith's affidavit).
Under div 2 of pt 7A, concerning appeals to the Board, is found s 58G. It reads in the following terms:
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.
For the basis by which the Board would conduct an appeal from a decision of the Council, following pt 7A provisions - s 58H, s 58I and s 58J - are all relevant. See s 58H(1) particularly, as regards a need for the Board to establish an independent review panel comprising persons with expertise in the area of the subject matter of the appeal.
The relationship as between a recommendation of a review panel, the Council and the Board is unique under s 58J (see particularly s 58J(3)).
Most relevantly however, s 58J(6) provides:
A decision made by the Board under this section on an appeal is final.
It is notable that the required constitution of a review panel must comprise persons with expertise in the area of the subject matter of the appeal. This rather tends to suggest that the character of an appeal provided for - to the Board against the decision of the Council - would be in the nature of an appeal by way of a rehearing de novo (ie, afresh). As to genres of statutory appeal, see Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616, 619 - 620.
The Board's application of the VET Act to Mr Smith's appeal
In present circumstances however, no appeal hearing was ever conducted by the Board. Hence there was never a call upon any independent review panel under s 58H(1).
The notice
That all came about because on 31 January 2019, the chair of the Board wrote to Mr Smith (and RPL) to advise them in the following terms:
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 Training Accreditation Council made on 27 September 2018 to cancel the registration of RPL Central Pty Ltd trading as Advanced Skill Recognition Initiative (RPL Central).
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 Central 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 Central to pay the annual fee required under regulation 15.
Regulation 19 does not require TAC 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.
This letter is found attached as annexure 'SH5' to Ms Stephanie Hiraishi's affidavit affirmed 23 March 2020 on behalf of the intervenor (Ms Hiraishi's affidavit).
The applicant's contention and relief sought
So, there was no appeal ever heard or determined by the Board.
As a result, by his judicial review application filed originally on 9 December 2019, but amended on 10 January 2020, Mr Smith seeks relief by way of certiorari, prohibition and other declaratory relief.
Mr Smith contends, in effect, the decision of the Board to not receive, hear and determine the merits of his attempted appeal, was wrongful. He argues that decision was a failure by the Board to exercise its jurisdiction to determine an appeal which Mr Smith's email communication of 22 October 2018 properly sought to pursue against the Council's cancellation decision against his corporation, RPL.
Some features of note
Several features of importance emerge from the discussion so far.
First, there is a dispute over the scope for an appeal to the Board under s 58G(2) of the VET Act.
In substance, there is a clash over whether there is a right of appeal only by reference to errors by the Council in the application or failure to apply criteria or procedures in 'guidelines' significantly confining the parameters of an appeal to the Board against any adverse decision of the Council. By the wording of s 58G(2) the guidelines are: ministerial guidelines issued under s 13(2) of the VET Act; or 'guidelines' under the regulations, relevantly the Vocational Education and Training (General) Regulations 2009 (WA) (the VET General Regulations) - see s 67 of the VET Act.
Such a limited scope of appeal by reference to such guidelines was the view expressed by the Board, ostensibly with the benefit of legal advice as it mentioned.
But Mr Smith, who acts in person, does not accept such a narrow view for the scope of the appeal rights to the Board, under s 58G(2). He contends there are far wider appeal rights. To that end he calls in aid the VET General Regulations. They in turn display reference to Commonwealth legislation and to regulatory standards under the Commonwealth legislation. Consequently, Mr Smith then refers to the National Vocational Education and Training Regulator Act 2011 (Cth) via which there are enacted Standards for VET Regulators 2015 (Cth) pursuant to s 189(1) of that 2011 Commonwealth legislation.
It is argued by Mr Smith, in effect, that those Standards for VET Regulators are effectively incorporated by reference under the local VET General Regulations.
Then, reg 8 found within the VET General Regulations, is relied on by Mr Smith. It says:
8.Council to have regard to, and apply, certain standards
(1)In performing its functions under Part 7A of the Act, the Council must have regard to the Standards for VET Regulators.
(2)In performing its functions under Part 7A of the Act, the Council must apply -
(a)the registration standards; and
(b)the accreditation standards. (my emphasis)
Observable in reg 8 above is a drafting textual distinction made as between something that 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).
Earlier, reg 7(1) defines certain terms used in pt 3 of the VET General Regulations (applicable for pt 7A of the VET Act). One such term, 'accreditation standards', is defined to mean:
accreditation standards means the AQTF 2007 Standards for Accredited Courses (published by the Commonwealth of Australia 2007);
Then, another term 'registration standards' is defined by reg 7(1) as:
registration standards means the Standards for NVR Registered Training Organisations made under the Commonwealth Act section 185;
I contrast those mentioned standards with the 'Standards for VET Regulators' which again is defined by reg 7(1) as:
Standards for VET Regulators has the meaning given in the Commonwealth Act section 189;
'Commonwealth Act' in turn is a reference back to the National Vocational Education and Training Regulator Act 2011 (see definition under reg 3 of the VET General Regulations).
It is necessary next to look more closely at the VET General Regulations, to the extent that they have not already been mentioned.
VET General Regulations
I turn to look at reg 19 of the VET General Regulations.
It will be remembered that the Council, by its cancellation decision, thereby ending the registration of RPL as a RTP, acted pursuant to s 58B(b) of the VET Act. In so acting, the Council had referenced reg 19(1)(e) and (g) of the VET General Regulations.
Below I set out those VET General Regulations to see the context of some wider aspects of reg 19(1):
19.Suspending or cancelling registration
(1)Under section 58B of the Act, the Council may suspend or cancel a WA registered provider's registration if it is satisfied as to any of these matters ‑
(a)…
(b)the provider has requested or consents to the suspension or cancellation;
(c)the provider has ceased to exist;
(d)the provider does not comply with the registration standards or the AQF;
(e)the provider has contravened a condition to which its registration is subject;
(f)the provider is not a fit and proper person to be registered having regard to the matters in regulation 12(6);
(g)the provider has not paid any annual fee in accordance with regulation 15. (my emphasis)
Also potentially relevant is reg 19(2). It says:
(2)Under section 58B of the Act, the Council may suspend or cancel a WA registered provider's registration for a reason specified by subregulation (1) even if ‑
(a)the Council is no longer satisfied that the provider satisfies the criteria for making an application for registration under regulation 10(1); or
(b)the provider has applied to another registering body to be registered as a training provider under a corresponding law or the Commonwealth Act.
It is also relevant to see reg 15 within these same regulations, as regard the topic of annual fees. It says:
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.
Were any guidelines to be applied by the Council under s 58G(2)?
Section 13 of the VET Act - ministerial guidelines
As already seen, s 58G(2) of the VET Act makes express reference to 'guidelines' that the Council is required to apply under s 13 (see s 13(2)).
Here, it does not appear to be contended that there was ever any relevant ministerial guideline, providing relevantly for 'criteria or procedures' applicable to the Council under current circumstances dealing with RPL's registration as at 27 September 2018. That is not surprising. The authorisation of the Minister under s 13(2) to issue such guidelines relates only to the functioning of the 'State training system' and to the 'policy to be implemented and procedures followed'. By s 13(3)(b) the Minister is specifically prohibited from issuing guidelines to:
the Council, with respect to a particular application or matter that is to be determined by the Council.
Hence, as regards the Council's cancellation decision by reason of an assessed failure by RPL to comply with reg 19(1)(e) and (g), a lack of any ministerial guideline is unsurprising. Decisions of Council concerning a particular matter determined by the Council are not, by s 13(3), to be the subject of a potential s 13(2) ministerial guideline issuance applicable to the Council. But there is another source of guidelines to engage with under s 58G(2).
Other sources of guidelines - VET General Regulations
There remains the question as to other sources of guidelines sourced from the VET General Regulations and by reference to which the Council might possibly be argued by Mr Smith to have erred in their application, or by a failure to apply, 'criteria and procedures' specified in such guidelines.
Alternatively, on Mr Smith's even wider view towards the scope of an appeal to the Board under s 58G(2), such an appeal could extend beyond mere 'guidelines', howsoever sourced. On that view, there would be permitted an appeal if the 'criteria or procedures' generally from the VET General Regulations were not followed, or were erroneously applied, in or around a decision of the Council taken by reference to reg 19(1)(e) and (g) regarding RPL.
I return to the applicable guidelines and the relevance to the grounds for the Council's cancellation decision at [89] below.
But before that, in order to better comprehend reg 19(1)(e) and its present implications, it is necessary to reveal something more of the background history underlying the present application. In particular I need to illuminate what had been the conditional basis upon which RPL came to be registered under the VET Act, effective 1 August 2016 as an RTP in this State.
Some background to RPL being accepted as an RTP under the VET Act
From his submissions for himself and for RTP, it would appear that Mr Smith, who is residentially based in the State of Victoria, and his corporation RPL have been at odds from at or around 2011 - against either the Council, or with the Board, over or around Mr Smith's desired registration of RPL as an RTP under the VET Act.
The Board's 7 October 2015 communication
For present purposes the story can be opened at 7 October 2015. That was when the chair of the Board (a Mr Jim Walker) wrote to Mr Smith and to RPL (see a communication that is annexed 'SH2' to Ms Hiraishi's affidavit).
Relevantly, the 7 October 2015 communication to Mr Smith on behalf of the Board had said:
OUTCOME OF REVIEW OF APPEAL AGAINST A DECISION OF THE TRAINING ACCREDITATION COUNCIL
I refer to your appeal against the decision made by the Training Accreditation Council ('the Council') on 28 August 2014 at the 205th meeting to reject your application to be registered as a training provider in Western Australia.
In accordance with section 58H of the Vocational Education and Training Act 1996 ('the VET Act') the State Training Board ('the Board') appointed an independent review panel to consider the appeal.
…
The Board reconvened the panel [referring to the independent review panel that is provided for under s 58H(1) of the VET Act] and on 18 August 2015 the panel provided a supplement report with the following recommendation:
•that the appeal be allowed; and
•RPL be registered as a training provider subject to the condition that it can establish with the appropriate regulator (TAC or the Australian Skills Quality Authority (ASQA)) within three months of registration that it meets the current requirements for registration.
The Board wrote to the Council on 21 August 2015 and on 11 September 2015 the Council confirmed that the original decision of the Council should be altered.
The Board's decision
The Board reviewed the Council's response. In this case, the Board must set aside the Council's original decision and substitute a decision that accords with the review panel's recommendation. Accordingly, the Board agreed to the following resolution:
1.The appeal lodged by Mr Simon Smith of RPL Central Pty Ltd is allowed.
2.The Training Accreditation Council decision of 28 August 2014 not to register RPL Central Pty Ltd as a training provider in Western Australia is set aside.
3.The State Training Board substitutes the following decision:
RPL Central Pty Ltd should be registered as a training provider in Western Australia subject to the condition that it can establish with the appropriate regulator (Training Accreditation Council or the Australian Skills Quality Authority) within 6 months of registration that it meets the current requirements for registration.
4.Mr Smith must be informed in writing of the State Training Board's decision, the reasons for it and must be provided with a copy of the review panel's recommendation.
5.The State Training Board must inform the Training Accreditation Council of its determination of the appeal.
6.The State Training Board's decision is final.
…
(my emphasis in bold)
The reference in the Board's communications above to the condition upon which RPL had come then to be registered as a training provider in Western Australia, under what may now be exposed as the substituted decision by the Board upon that earlier appeal for the Council, is a critical link relevant to present circumstances going back to the VET General Regulations and so, to reg 19(1)(e).
As already seen, at [41] above, the (subsequent) 27 September 2018 cancellation of RPL's WA registration had been open, if the Board had been satisfied, that:
(e)the provider has contravened a condition to which its registration is subject;
The Council's reduced scope confirmation - 15 September 2016
Another key background fact towards the present judicial review application is that Mr Smith's corporation, RPL, at 1 August 2016 had finally registered as a training provider under the VET Act. But as also now seen, that 2016 registration had been obtained on condition. To that conditional end status is a letter from the Council to Mr Smith of 15 September 2016. It may be found as part of annexure 'AN5' to Mr Smith's affidavit.
On 15 September 2016 the Council wrote to Mr Smith and RPL, relevantly advising:
The Council was required to give effect to the Board's decision, including the condition that RPL Central Pty Ltd be audited within 6 months of registrations. 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 Central Pty Ltd was registered as a training provider, with effect from 1 August 2016.
RPL Central Pty Ltd's scope of registration
I note that you have queried why the scope of RPL Central Pty Ltd's registration does not include all of the courses or qualifications included on RPL Central Pty Ltd's original registration application.
Under regulation 7(1) of the Vocational Education and Training (General) Regulations 2009 (WA), a registered training provided 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 Central Pty Ltd'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 Central Pty Ltd's scope of registration cannot include all of the qualifications and courses in RPL Central'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 Central Pty Ltd to provided 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.
Yours sincerely
Ian C Hill
CHAIRMAN
TRAINING ACCREDITATION COUNCIL
15 September 2016That 2016 advice from the Council, confirming a number of qualifications sought in RPL's original application being 'superseded', appears, from listening to Mr Smith's verbal presentation at the hearing, to lie very much at the heart of his true grievance against the Council (see ts 14 - 15, 25, 27 ‑ 28, 30 - 31, 69 - 70). That 2016 advice of the Council as to a reduced number of qualifications obviously grates very strongly with Mr Smith.
By reference to Mr Smith's extensive materials within a somewhat voluminous 'AN5' to his affidavit, that Mr Smith, in 2016, had responded by email to Mr Hill and to the Council five days later on Tuesday, 20 September 2016 at 2.50 pm. This was in an email under a heading which read: 'Response to Mr. Ian Hill's illegal and unlawful letter dated 15/Sep/2016 purporting that the decision to register an RTO under my name is legitimate without excuse'.
The Council's reduced scope confirmation, at which Mr Smith appears to have been very aggrieved, was made long ago, seemingly even before 15 September 2016. And it was not then a subject of any challenge by Mr Smith under the VET Act, or otherwise.
A great deal of ensuing grievance based correspondence over this truncation of qualifications grievance emanating from Mr Smith followed.
Indeed Mr Smith, appearing in person at the hearing by video‑link from Victoria, told me, in effect, that in the wake of that truncation decision by the Council, RPL had never even commenced to operate in Western Australia as a RTP, given the reduced scope of possible training courses that RPL wanted to be accredited to provide. As expressed by Mr Smith during his verbal submissions, the Council had 'sliced' some 250 qualifications - that RPL had sought to be accredited to train down to only 93 (ts 14, 27 - 28).
As a result Mr Smith told me 'I never started' (ts 15). I took that as a reference, contextually, to in Western Australia and to his corporation RPL.
Yet it is only the subsequent Council cancellation decision of 27 September 2018 that Mr Smith now seeks to make the subject matter of a further appeal to the Board.
I turn to that cancellation decision of the Council.
The Council's cancellation decision
The Council communication of 1 October 2018 advising of its 27 September 2018 decision is found within Ms Hiraishi's affidavit as annexure 'SH3'. Relevantly, it provided:
POST INITIAL AUDIT AND UNPAID ANNUAL FEE
I refer to previous correspondence from the Training Accreditation Council (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 Central Pty Ltd trading as Advanced Skills Recognition Initiative (RPL Central), having regard to the failure of RPL Central 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 Central'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 Central Pty Ltd trading as Advanced Skills Recognition Initiative 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 Central Pty Ltd trading as Advanced Skills Recognition Initiative 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 Central Pty Ltd trading as Advanced Skills Recognition Initiative 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.
…
Yours sincerely
Mr Ian C Hill
CHAIRMAN
TRAINING ACCREDITATION COUNCIL
1 October 2018
Mr Smith and RPL's attempted s 58G(1) VET Act appeal
By his long email of Monday, 22 October 2018, sent at 2.55 pm, Mr Smith, on behalf of RPL, sought to appeal to the Board against the Council's cancellation decision, under s 58G of the VET Act. His email is annexure 'SH4' to Ms Hiraishi's affidavit. However, its contents are so lengthy it is impracticable to set them all out in the reasons. Consequently, I schedule the entirety of the email for reference to the reasons, as Schedule 2.
Relevantly, the following extracts are seen from Mr Smith's email to the Board:
RE: Appeal under s58G of the Vocational Education and Training Act 1996 on multiple questions of law from the Training Accreditation 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 TAC 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 Standards for VET Regulator's, and the TAC 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, ...
As will be verified by examining the full content of this email at Schedule 2, this long email from Mr Smith did not then engage, or attempt to engage, with the two grounds that the Council had said that it acted, under its cancellation decision - namely and by reference to VET General Regulations:
1.reg 19(1)(e) failure to comply with condition; and
2.reg 19(1)(g) failure of RPL to pay annual fees.
At the end of that long email communication to the Board, Mr Smith had said:
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 TAC 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.
Evaluation of the Council's expressed grounds for the decision to cancel RPL's registration
Regulation 19(1)(g) - failure to pay annual fee
For the reg 19(1)(g) cancellation ground as was relied upon by the Council, as to RPL failing to pay the annual fee, Mr Smith for his corporation, in effect, argues to show something of a legal 'set‑off' against the annual fee amount. This was by reference back to his 2016 scope grievance concerning the reduced qualifications - from 250 down to 93.
As to not paying the annual fee, see again annexure 'AN5' to Mr Smith's affidavit and the email from a Kane Depiazz on behalf of the Executive Officer of the Council secretariat to Mr Smith of Monday, 11 September 2017 at 5.01 am. That email enclosed and attached a copy of a tax invoice for an annual fee of $10,730 which was said to be 'due on 13 July 2017'. It was observed by Mr Depiazz in the email that an earlier reminder had been sent by email on 12 August 2017. The communication now added:
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 …
A further reminder over the fee next looks to have been sent to Mr Smith under cover of a communication of 26 March 2018, on behalf of the Council from a Stephanie Trestail - referring to the unpaid annual fee and a 'post initial audit'. Again see that found within annexure 'AN5' to Mr Smith's affidavit, albeit unnumbered. That communication now warned Mr Smith of a potential suspension or cancellation of RPL's registration under reg 19(1), referring to (d) and (g).
Nonetheless, and to cut a long story short, the annual fee due was never paid by RPL. It was still outstanding at the time of the Council's cancellation decision of 27 September 2018.
Mr Smith's attempted set-off argument against it, with respect, has no legs at all, given it is directed back at the Council's reduced scope confirmation and subsequent issues - which was never appealed or overturned then, and remains wholly undisturbed. Consequently, the annual fee was always due to be paid and was not. No lawful excuse for not paying it ever emerged.
Regulation 19(1)(e) - failure to comply with condition
Likewise the failure of Mr Smith to provide information to the Council to enable its performing of a 'post initial audit' was significant and in an adverse way for the conditional registration of RPL as a training provider in Western Australia.
As already seen, RPL had first been registered as a RTP in Western Australia (after an appeal to the Board) subject to a founding condition that RPL establish within six months of registration that it met 'current requirements for registration'. Clearly, that did not occur within the as nominated six month period specified by the condition. There had been no waiver of that condition by the Council, or by the Board.
It might have been put against Mr Smith and RPL that at six months after RPL's initial, conditional registration, ie, six months after 1 August 2016, namely at 1 February 2017, RPL's registration as a training provider in Western Australia had then lapsed, by reason of its failure then to meet the condition within six months of registration. The timing point was not taken against RPL during 2017.
However, at 27 September 2018 more than ample time had then passed. And at that time RPL had still not commenced trading in Western Australia so as to provide training courses for which it had been conditionally registered to provide in 2016. In short, nothing had been done by RPL in Western Australia, even then.
Again, and with all due respect to Mr Smith, his true underlying grievance for RPL can be traced back to what was his overwhelming and abiding dissatisfaction with the truncation in scope advice under which the Council in 2016 had wrongly limited, as he saw it, the accreditation of RPL's registration.
Determination of judicial review application
The final iteration (at 10 January 2020) of Mr Smith's grounds of judicial review is lengthy. They were drawn to complain of the asserted failure by the Board to consider mandatory relevant considerations (ground 1(b)), but also, by ground 1(c), failure to provide adequate reasons for the Board's decision that there would be no appeal under s 58G of the VET Act.
However, the substantive underlying legal issue is over whether or not there was, as Mr Smith contends, a right of appeal open to him to the Board under s 58G(2) of the VET Act against the Council's cancellation decision toward his corporation RPL.
If Mr Smith did not hold any appeal rights to the Board, then there was no jurisdictional error by the Board in failing to exercise that appellate role.
If Mr Smith did hold such rights of appeal and so, there was an error of law made by the Board in self‑interpreting the scope of its appellate jurisdiction to hear and determine Mr Smith's submitted appeal from the Council in the present circumstances, then jurisdictional error in the Board would be made out. It would arise then by a failure to exercise the jurisdiction it held. I refer in that respect to Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; (2010) 239 CLR 53 at [71], particularly to the plurality's reference (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) to the article by Aronson M, 'Jurisdictional Error Without Tears' in Groves & Lee (eds) Australian Administrative Law: Fundamentals, Principles and Doctrines (2007) 330, 335 - 336. Professor Aronson makes reference to an assembled eight categories of jurisdictional error (which were all helpfully collected by Smith J in Ashwin v Housing Authority [2019] WASC 144 at [10]).
Professor Aronson's first category of jurisdictional error is by reference to a mistaken assertion or denial of the very existence of jurisdiction. That would be the position here, if Mr Smith were right and the Board wrongly denied him an appeal against the Council's cancellation decision.
But the general difficulty presenting was that the many pages of grievances assembled under Mr Smith's email of 22 October 2018 to the Board, as an attempted appeal, do not sufficiently engage with the statutory requirement set under s 58G(3)(a) of the VET Act, to state 'grounds of the appeal'.
Instead, what Mr Smith sent then to the Board by email was a drawn out and generalised expression of grievances - that did not at any stage sufficiently grapple with the Council's findings adverse to him and RPL, that the required annual fee was not paid by RPL, by reference to reg 19(1)(g). Nor then, by reference to reg 19(1)(e) did Mr Smith's email confront the issue of why the six month original condition, which required RPL to show that it met the current requirements for registration, was still not met.
There had been, in 2018, a failure by RPL to supply information to the Council. Consequently, there was created an inability for the Council to conduct an audit in order for the Council to verify compliance with that condition by RPL. Indeed, the whole position for RPL at that time seems to have been one of no activity at all conducted in Western Australia as a training provider - given Mr Smith's abiding grievance over scope of accreditation provision dating back to 15 September 2016 and raised against the Council's reduced scope advice. Consequently, RPL had not (by October 2018) commenced to operate in Western Australia as a RTP from 1 August 2016, or at all. Those fundamental problems were not confronted in the long email. They were lost sight of, in effect.
Whilst it is not my preferred construction, even were I to accept for argument's sake that the correct interpretation of s 58G(2) could see it extend wider than to the 'guidelines' in the regulations under the VET Act (extending upon Mr Smith's arguments to regulations or standards incorporated by reference from the Commonwealth regime), here, that would still not be enough for Mr Smith and RPL.
The base problem for Mr Smith is that such 'errors' of the Council as he seeks to take issue with, in terms of the Council's cancellation decision, on its face, was fully justified by reference to established transgressions by RPL against the two regulations invoked, namely against reg 19(1)(e) and (g) as regards the annual fee not being paid and the condition attached to RPL's registration not being met.
There had been no failure by the Council to apply relevant criteria or procedures by the Council to that 2018 decision. The underlying facts were established. Mr Smith's true grievance as exposed by verbal arguments was directed both elsewhere and earlier, namely at the Council's reduced scope decision.
Consequently, I am at the end in agreement with the position of the Board, to the effect that the as proposed submitted appeal under Mr Smith's email of 22 October 2018 did not fall within the parameters of s 58G(2) of the VET Act. Consequently, there was no legitimate basis for that attempted appeal. Therefore, there was no basis for the Board to venture down that path. Consequently, there was no jurisdictional error by the Board. The Board did not fail to take into account mandatory relevant considerations. Nor did the Board fail to provide adequate reasons for its decision not to hear Mr Smith's submitted email as an appeal. The issues he wanted to raise were not open then for the Board then to exercise any appellate jurisdiction.
No doubt Mr Smith will be disappointed by this decision given the obvious passion and emphasis by which he sought to personally advocate for the Board's error. Part of his submission had generally contended that a limited right of appeal under s 58G(2) was wholly out of alignment with wider appeal rights under equivalent training standard legislation and regulations, as he saw matters, across the rest of Australia. But even were that to be so, it cannot influence the interpretive exercise I have been required to conduct towards s 58G of the VET Act which legislation must be interpreted within its local environment, by reference to its text, context and objectively assessed legislative purpose.
Orders and costs
Consequently, Mr Smith's judicial review application must be dismissed. As I have mentioned, the Board at an early point had agreed to abide the ultimate decision of the court (save as to costs). The participation of the Intervenor as amicus under the leave to that end granted by Archer J, was reached on a basis that the Intervenor and Mr Smith would bear their own costs.
Consequently, the only relevant order, which order will issue upon the publication of these reasons, is that Mr Smith's amended judicial review application of 10 January 2020, is dismissed.
SCHEDULE 1
DATE
DESCRIPTION
SOURCE22 July 2010
RPL applies to be registered as a RTP in WA under s 58B of the VET Act.
AN1 to Mr Smith's affidavit
28 August 2014
The Council decides not to register RPL as a RTP in WA pursuant to s 58B of the VET Act.
AN1 to Mr Smith's affidavit
18 August 2015
Following a successful appeal of the Council's decision, the Board advises the Council of the independent review panel's recommendation to allow the appeal and register RPL as a RTP subject to the condition that it meet current requirements for registration within a period of time.
AN1 to Mr Smith's affidavit
11 September 2015
The Board's recommendation is confirmed by the Council.
AN1 to Mr Smith's affidavit
7 October 2015
The Board advises RPL of the outcome of the appeal, namely that RPL should be registered as a RTP in WA subject to meeting requirements for registration.
AN1 to Mr Smith's affidavit
6 November 2015
The Council writes to RPL and advises of the approval of its initial registration (outlined the Board's substituted list of qualifications and referred to as a 'proposed scope'.
AN2 to Mr Smith's affidavit
21 July 2016
The Council writes to RPL attaching a 'Delivery Profile' identifying (under the subheading 'Pending scope') the courses and qualifications presently 'approved' for the purposes of the VET Act.
AN3 to Mr Smith's affidavit
1 August 2016
RPL is registered as a RTP.
AN5 to Mr Smith's affidavit
15 September 2016
Following Mr Smith's inquiry, the Council writes to Mr Smith and RPL confirming the reduced scope of registration.
(The Council's reduced scope confirmation)
AN5 to Mr Smith's affidavit
30 July 2017
Email sent to RPL attaching invoice annual fee for registration with the Council.
AN5 to Mr Smith's affidavit
11 September 2017
Mr Depiazz (from the Council) sends Mr Smith an email titled 'FINAL NOTICE Overdue Fee - RPL Central Pty Ltd' attaching an invoice for RPL's annual registration fee. Email identifies an earlier reminder notice sent on 12 August 2017.
($10,730 due 13 July 2017)AN5 to Mr Smith's affidavit
26 March 2018
Ms Trestrail (from the Council) sends a letter to Mr Smith referring to the unpaid annual fee and a 'post initial audit'. Mr Smith was warned of a potential suspension or cancellation of RPL's registration under reg 19(1) (referring to (d) and (g).
AN5 to Mr Smith's affidavit
20 August 2018
Following a failure of the Council to receive payment of RPL's annual fee and evidence of compliance with registration standards, the Council sends a letter to RPL outlining the proposed cancellation of its registration as a RTP.
AN5 to Mr Smith's affidavit
27 September 2018 (relayed in a letter dated 1 October 2018 and taking effect on 23 October 2018)
The Council decides to cancel RPL's registration (as a RTP) under s 58B(b) of the VET Act.
(The Council's cancellation decision)
AN6 to Mr Smith's affidavit
SH3 to Ms Hiraishi's affidavit22 October 2018
RPL (via Mr Smith) via email seeks to appeal the Council's decision to cancel its registration as a RTP.
AN8 to Mr Smith's affidavit
SH4 to Ms Hiraishi's affidavit31 January 2019
The Board responds via letter to Mr Smith advising that there could be no appeal in relation to the Council's decision to cancel the RPL's registration.
(The Board's appeal refusal decision)
AN9 to Mr Smith's affidavit
SH5 to Ms Hiraishi's affidavit10 January 2020
Mr Smith files an application for judicial review in the Supreme Court of Western Australia.
Electronic document 1 filed on CIV 3096 of 2018 in this proceeding
SCHEDULE 2
[Schedule 2 is reproduced in identical form to the document at annexure 'SH4']
22/10/2018
RE: Appeal under s58G of the Vocational Education and Training Act 1996 on multiple questions of law from the Training Accreditation 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 TAC 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 Standards for VET Regulator's, and the TAC 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, and;
The major breach other than adherence to any form of consistency, natural justice and conformance with the specific standards for VET Regulator's which will be itemised and summarised in a table of specific events is a material breach to the Vocational Education and Training Act 1996 section:
58J . Determination of appeal
(6) A decision made by the Board under this section on an appeal is final.
As well as engaging in conduct in trade or commerce that constitutes bad faith, and is commercial in nature, and is a false representation, and misleading and deceptive conduct by promising one set of scope and the inherent right of an alleged CEO to contribute to the initial registration process, and swapping it with another set of scope 1/3 the size, without consultation, in contradiction to the first representation, against the Appeal law, against the Commonwealth lawyer's advice, and against their own logic, and against the rules of a process that is to hire competent staff which they were flawed in on the first appeal, yet demanded CV's again prior to starting registration yet again stating that there are no equivalent courses to 2/3 of the Qualifications after already providing a list of 'what they thought' were equivalent, not allowing the "CEO" to engage in any active communication to commence trading.
Instead a scope and decision was forced upon me, my scope request (despite being a RPL process that was granted registration to prove within 6 months of registration the process worked and noting that I was not audited on Qualifications but a HR Process) the scope chosen could have been within any of the groups the had originally represented, hence their misunderstanding or RPL and detrimental action and punishment for complaining that they did not comply with the Appeal by allowing a new registration UNDER THE NEW LAW - they kept referring to the old law and old Qualifications.
They also used the excuse after making the first false representation after they punished me for complaining that they did not have the power to alter the scope. It is a new registration and regardless, this is untrue as such power is unnecessary as the appeal quotes it as a new registration under the new law, and even so, the regulations to cater for the TAC to alter scope (even though it is irrelevant to our audit proven assessment HR PROCESS that they just would never let us start). The claim they make that they cannot "alter scope" although that excuse is flawed because they should not be altering anything as it is an "initial registration" under the "new law" de novo according to the appeal, is a lie and completely untrue and inconsistent with Regulation 17(3)a as Regulation 17(4) was decided in the appeal.
I intend to furnish evidence of the Crown Solicitor enquiring as to "why the RTO is not on the TGA".
17. Varying registration
(3) The Council, on its own initiative, may vary a WA registered provider's registration at any time by doing any of the following — (a) correcting any information in the register that is wrong; (b) changing the provider's scope of registration; (c) imposing a condition that may be imposed under regulation
13(3)(c); (d) varying or cancelling a condition that has been imposed under regulation 13(3)(c).
(4) The Council must not vary a WA registered provider's registration to change the provider's scope of registration unless it is satisfied that the provider satisfies the criteria for making an application for registration under regulation 10(1) and that — (a) the provider complies with the registration standards and the AQF; or (b) an audit or a compliance audit has been conducted on the provider within the previous 3 months and the provider has been found to comply with those standards.
· I never signed any statutory declaration approving the Scope, approving the alterations and changes they have made to the scope throughout the 2 years without consent and have otherwise never advertised or traded, and never engaged in such activity except as to continuously ask for compliance.
· Further legal submissions will be supplied over the coming days.
· Further in a letter where they stated they want to "audit the RTO" they stated that the Audit wold not be based on risk. This is illegal as any kind of audit under the RTO is a risk based audit. This will also be provided in a substantive document.
· Further, they held a meeting "but I was to be silenced" supposedly giving me the opportunity as to why the RTO should not be cancelled. I was not allowed to question them as to why they have not investigated or answered any of my complaints, or discuss legislation or ask any questions relating to their reasoning as to why they believe they have not erred in deeming this "entity" an RTO with acceptance from me. Every contract requires an offer and acceptance. This was never accepted, and was never offered in conjunction with the conditions of the appeal.
· As soon as TAC staff got the decision and went back to their old ways and continued to demand CV's, and I complained referring back to the decision and their misinterpretation and made a complaint, they ignored me, did not take any requests or engage in any communication from their supposed CEO, and dumped what they wanted and believed to be scope on me and said "too bad so sad" in complete breach of the Standards for VET Regulators, natural justice, admin law, the ruling of the STB and in particular the VET Act58J(6). The material breaches to the standards are self explanatory in the communication but include and are not limited to:
· The quality of the regulation of RTOs is crucial to ensuring the credibility of the VET system. This is achieved through effective and efficient processes and practices that are fair, risk-based, transparent, responsive, consistent, and meet legislative requirements. In addition to using a risk-based (refer to comment and letter regarding WA wanting to audit this non accepted 'entity' on a non risk basis) approach the VET Regulator has:
o robust and transparent decision making processes; (they continue to ignore me)
o auditors who meet national competency requirements; and (from the beginning 3 auditors and the STB found in my favour and they still cannot let me trade afresh by choosing scope and beginning an RTO like a normal applicant)
o procedures and practices in place to promote consistency in auditor judgements. (It was apparent that the auditor judgments and the STB judgment did not matter. They set out to destroy my commercial operation and not comply with what I worked hard for and earnt and treated my application differently. I only asked for the same. I paid the same, I did not get any refund or explanation at law. I have spoken to Barristers who have agreed it is both outside of their contractual capacity if they even had one imposed on them, and what they did further constitutes potential offences and torts of monetary loss at law)
· 1.9. The VET Regulator ensures that its auditors:
· a) adopt contemporary best practice auditing approaches; and
· b) exercise their judgement in a manner which maximises consistent interpretation of the Standards for RTOs, audit practice and findings across audits; and
· c) from 1 January 2016, meet the national competency requirements for auditors specified in Schedule
o 1. 1.10. The VET Regulator makes decisions in a manner consistent with the principles of natural justice and procedural fairness.
Further, The TAC is and has always been in breach of Regulation 12(7).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 the attached documents. I will follow up with some more detailed specific facts of law. I have tried to timelinen everything. Behind each event is a lengthy email and data. Please do ask for any and all information if there is any inch of doubt.
I would like the opportunity to meet and to clarify the entire story so there can never be any confusion as to the shocking occurrences and medical and financial damage this has caused me, and the leading staff I have lost.
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 TAC 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.
Yours truly,
Mr. Simon Smith - Senior Forensic Investigator
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IH
Research Orderly to Justice Kenneth Martin2 NOVEMBER 2020
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