Star Training Academy Pty Ltd v Commissioner of Police (NSW)

[2023] NSWSC 153

Supreme Court

New South Wales

Medium Neutral Citation:

Star Training Academy Pty Ltd v Commissioner of Police (NSW) [2023] NSWSC 153

Hearing dates:

29-30 March, 8 April, and 11 May 2022

Date of orders:

28 February 2023

Decision date:

28 February 2023

Jurisdiction:

Common Law

Before:

N Adams J

Decision:

(1) The decision of the Security Licensing and Enforcement Directorate dated 10 September 2021 is quashed.

(2) The defendant is to pay the plaintiff’s costs on the ordinary basis.

Catchwords:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – jurisdictional error – materiality – procedural fairness – where decision-maker denied procedural fairness by not giving opportunity to address adverse report of a third party – where decision-maker and plaintiff gave evidence about what they would have done in counter factual scenario where procedural fairness was afforded – where decision-maker makes finding of dishonesty – test for materiality – whether the court should resolve factual disputes about what would have occurred had procedural fairness been afforded – whether denial of procedural fairness is material

Legislation Cited:

Migration Act1958 (Cth), ss 437, 438, 501(3A), 501CA(4)

Security Industry Act 1997 (NSW), ss 15, 27A, 29, 39K

Supreme Court Act 1970 (NSW), ss 69, 75

Uniform Civil Procedure Rules 2005 (NSW), r 59.10(1)

Migration Regulations 1994 (Cth)

Cases Cited:

Bale & Anor v Mills (2011) 81 NSWLR 498; [2011] NSWCA 226

Hansen & Anor v Patrick & Ors (2019) 3 Qd R 93; [2018] QCA 298

Jones v Dunkel (1995) 101 CLR 298; [1995] HCA 8

Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3

Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; [2016] HCA 29

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441

Nadinic v Drinkwater (2017) 94 NSWLR 518; [2017] NSWCA 114

Nathanson v Minister for Home Affairs (2022) 96 ALJR 737; [2022] HCA 26

R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13

Re Refugee Review Tribunal; Ex parteAala (2000) 204 CLR 82; [2000] HCA 57

STAR Training Academy Pty Ltd v Commissioner of Police [2021] NSWCATOD 166

STAR Training Academy Pty Ltd v Commissioner of Police [2021] NSWCATAP 370

Stead v State Government Insurance Commission (1986) 161 CLR 141; [1981] HCA 54

Category:

Principal judgment

Parties:

Star Training Academy Pty Ltd (ACN 601 671 916) (Plaintiff)
Commissioner of Police (NSW) (Defendant)

Representation:

Counsel:
Mr J King (Plaintiff)
Mr J Emmett SC with Ms A Hammond (Defendant)

Solicitors:
Piper Alderman (Plaintiff)
Maddocks Lawyers (Defendant)

File Number(s):

2021/00224551

Publication restriction:

Nil.

JUDGMENT

1. By further amended summons filed on 30 March 2022, the plaintiff, Star Training Academy Pty Ltd (“Star”), seeks judicial review of the decision made by a subdelegate of the Commissioner of Police (NSW) (“the Commissioner”) on 10 September 2021 to revoke Star’s approval to provide accreditation courses for security officers under s 27A of the Security Industry Act 1997 (NSW) (“the Act”).

2. Before any person in NSW can be employed as a security officer, he or she must first undertake security training - much like a person seeking to be employed to serve alcohol must first complete responsible service of alcohol (RSA) training. Such courses are offered by various teaching colleges who provide professional accreditation courses. A company or individual cannot offer such a course unless it is approved to do so under the Act. Such approval can be granted subject to conditions.

3. The Commissioner is responsible for the implementation of that Act and is the relevant administrative decision-maker. She has delegated many of her responsibilities under the Act to the Security Licensing and Enforcement Directorate (“SLED”) within the NSW Police Force.

4. Star is a company which provides professional accreditation courses in relation to a range of areas of work including the provision of private security services. On 12 December 2014, a subdelegate of the Commissioner exercised the power under s 15(2)(b) of the Act to approve Star to provide training, assessment and instruction in relation to the carrying on of security activities under a given licence (for the purposes of s 15(1)(d), noting that s 15 provided “general suitability criteria” for the granting of a licence).

5. Star is also a registered training organisation (“RTO”), which requires approval from the Australian Skills Quality Authority (“ASQA”). The significance of that fact will be explained below.

6. On 11 August 2021, a subdelegate of the Commissioner, Lisa Stockley (Assistant Director (Industry Regulation) at SLED), served on Star a notice to show cause (“NSC”) as to why Star’s approval to provide training, assessment and instruction in relation to the carrying on of security activities should not be revoked. Star provided a written response through its solicitor on 24 August 2021.

7. On 10 September 2021, Ms Stockley revoked Star’s approval under s 27A(2)(b) of the Act (“the revocation decision”).

8. Shortly thereafter Star sought review of the revocation decision in the NSW Civil and Administrative Appeals Tribunal (“NCAT”) under s 29 of the Act.

9. On 23 September 2021, a Senior Member of NCAT held that the Commissioner’s revocation of Star’s approval under s 27A of the Act did not fall within the terms of s 29(1) of the Act and thus the Tribunal lacked jurisdiction to hear the application: STAR Training Academy Pty Ltd v Commissioner of Police [2021] NSWCATOD 166.

10. Star appealed against that decision to an Appeal Panel of NCAT but on 18 November 2021 that decision was upheld by the Appeal Panel: STAR Training Academy Pty Ltd v Commissioner of Police [2021] NSWCATAP 370.

11. By amended summons filed on 15 November 2021, Star commenced proceedings in this court invoking its supervisory jurisdiction as regulated by s 69 of the Supreme Court Act 1970 (NSW) to review that revocation decision. It was common ground that Star has no alternate statutory right of appeal or review and that these proceedings were brought within time.

12. In late 2021, the parties agreed on an interim regime pending the outcome of these proceedings whereby Star was permitted to provide security training one course at a time subject to oversight from SLED.

The hearing

13. The matter was listed for a two day hearing on 29 and 30 March 2022. Mr James King of counsel appeared for Star and Mr James Emmett SC appeared with Ms Alison Hammond for the Commissioner. Affidavits were served by both parties, including the affidavits of the decision maker, Lisa Stockley. In addition, a large amount of material was provided including the 8-volume court book, submissions, authorities and additional exhibits.

14. Star relied upon four affidavits by Javaid Malik, the CEO of Star, dated 19 November 2021, 7 December 2021, 18 February 2022, and 25 February 2022 and the affidavit of Jeremy Charles McNamara, an independent consultant engaged by Star, dated 24 March 2022. The Commissioner filed three affidavits of Lisa Stockley dated 24 November 2021, 23 December 2021 and 17 January 2022. Further affidavits of Jason Thomas dated 15 March 2022, Maikeli Latukefu dated 15 March 2022, Tony Vulic dated 15 March 2022, and Lea Stevenson dated 16 March 2022 were included in the court book but were not ultimately read by the Commissioner.

15. Mr McNamara gave evidence on 29 March 2022. Mr Malik gave evidence on 29 and 30 March 2022. Ms Stockley commenced her evidence on 30 March 2022 but was unable to finish it, so the matter was stood over to 8 April 2022 for further hearing. On that day, the proceedings were stood over for a further day of hearing on 11 May 2022. Final submissions were made on that day, and I reserved my decision.

16. On the first day of the hearing, it became apparent that the arguments raised in Star’s written submissions and the evidence sought to be adduced did not align in some areas with what was pleaded in the amended summons. In circumstances where the hearing could not be finalised in the allocated time in any event, I granted Star leave to file in court and move on a further amended summons which resolved these issues. This was done with the consent of the Commissioner. The further amended summons was filed on 30 March 2022 and was in these terms:

“Certiorari in respect of revocation decision

1. Pursuant to s 69 of the Supreme Court Act 1970 (NSW), order that the decision made by a delegate of the defendant dated 10 September 2021 to revoke the approval of the plaintiff under s 27A of the Security Industry Act 1997 (NSW) be quashed.

Particulars

a. Denial of procedural fairness (ASQA audit): The decision involved jurisdictional error insofar as the delegate failed to observe the requirements of procedural fairness with respect to allegedly prejudicial information obtained by her from the Australian Skills Quality Authority (ASQA). In particular:

i. In making her decision, without notice to the plaintiff, the delegate:

A. obtained from ASQA a copy of a document described as ASQA's initial ‘Performance assessment (audit) report for Star Training Academy Pty Ltd’ dated 3 September 2021 (ASQA Report); and

B. made inquiries of ASQA sufficient to permit her to say that ‘SLED understands that STAR was notified verbally by ASQA of the preliminary audit findings during their closing meeting on 5 August 2021’ (ASQA Understanding).

ii. The delegate perceived the ASQA Report and the ASQA Understanding to be adverse to the plaintiff, and to be credible, relevant, and significant.

iii. The delegate did not provide the plaintiff with an opportunity to be heard in relation to the ASQA Report or the ASQA Understanding, and did not inform the plaintiff of the nature or content of that information.

iv. The delegate relied on the ASQA Report and the ASQA Understanding to find that the plaintiff had engaged in ‘deception’; that the plaintiff had ‘deliberately misled’ the defendant; and that the plaintiff's responses to the show cause notice were ‘deliberately misleading’.

v. The delegate acknowledged that her concern in that respect was ‘not included as a concern in the [notice to show cause]’ issued to the plaintiff.

vi. The delegate did not provide the plaintiff with an opportunity to be heard in relation to the findings particularised in paragraph (iv) above, which were adverse conclusions that were not obviously open on the known material.

vii. The plaintiff did not deliberately mislead the defendant.

viii. In the premises, the delegate failed to observe the requirements of procedural fairness and the decision should be quashed.

b. Denial of procedural fairness (alleged tampering with student records): The decision involved jurisdictional error insofar as the delegate failed to observe the requirements of procedural fairness with respect to the allegation of tampering with student records. In particular:

i. The delegate found the plaintiff's response to this concern ‘to be deliberately unhelpful by seeking to confuse what is meant by the term “original documents” in the [show cause notice]’.

ii. The delegate did not provide the plaintiff with an opportunity to be heard in relation to the finding particularised in paragraph (i) above, which was an adverse conclusion that was not obviously open on the known material.

iii. The true position was that the delegate's show cause notice, to which the plaintiff was endeavouring to respond, was itself unhelpful and confusing.

iv. The plaintiff was not deliberately unhelpful and did not seek to confuse the delegate.

v. In the premises, the delegate failed to observe the requirements of procedural fairness and the decision should be quashed.

c. Denial of procedural fairness (inadequate show cause notice): The decision involved jurisdictional error insofar as the delegate failed to provide particulars of the alleged ‘systemic’ non-compliance of the plaintiff sufficient to enable the plaintiff to provide a substantive response to those allegations and to give the plaintiff a fair opportunity to be heard in relation to those allegations.

d. Apprehended bias: The decision involved jurisdictional error insofar as a fair­minded observer might reasonably apprehend that the delegate might not have brought an impartial mind to her decision in respect of the plaintiff. In particular:

i. When considering evidence that was capable of being characterised as ‘incorrect’, ‘misleading’, or ‘deliberately misleading’, the delegate repeatedly found, without hearing from the plaintiff, that the plaintiff ‘deliberately’ deceived her, and was unable or unwilling to proceed from an assumption of good faith and honesty on the part of the plaintiff.

ii. In circumstances where, to the plaintiff's knowledge, no decision to revoke ‘all of the approvals for all of STAR's trainers to conduct security training’ has been made on the merits.

iii. [Not used].

iv. The decision was made in circumstances where Ms Wollaston and/or Ms Stockley had expressed or exchanged the views described in the email from Ms Wollaston to Ms Stockley on 4 August 2021 at 6:25pm.

iv(1) The context in which the decision came to be made included the Plaintiff's allegation of apprehended bias in response to the Show Cause Notice and the Delegate's disposition of that allegation in the reasons for the decision.

iv(2) The context in which the decision came to be made included the matters alleged in paragraphs 1(a), 1(b), 1(c), 1(f), 3(d), and 3(e) of this summons.

v. In the premises, the delegate has evinced a preparedness to disregard the merits of administrative action and the requirements of procedural fairness, and to prejudge administrative action that is or may come before her, where that might lead to an adverse outcome for the plaintiff.

vi. In the premises, the decision involved jurisdictional error and should be quashed and should not be considered again by the same delegate.

e. Errors of law in applying invalid conditions: The decision involved jurisdictional error and errors of law on the face of the record insofar as the delegate treated as valid certain ‘conditions’ purportedly imposed on the plaintiff's approval that were, in law, not ‘conditions’ within the meaning of s 27A of the Act and were invalid and of no legal force or effect.

i. The plaintiff repeats and relies upon the allegations pleaded in support of prayers 2 and 3 for relief below.

ii. The delegate erred in law in holding that the plaintiff failed to comply with the purported conditions numbered 2, 3, 4, and 7 in the document titled ‘NSW Security Licence Course Conditions of Approval’ dated July 2020 in circumstances where they were not ‘conditions’ imposed on the plaintiff's approval within s 27A and were invalid and of no legal force or effect.

iii. The delegate erred in law in holding that the plaintiff failed to comply with ‘Condition 7A’, including as purportedly varied or added to on 25 May 2021 by email from an officer who was not a delegate of the defendant, in circumstances where that was not a ‘condition’ imposed on the plaintiff's approval within s 27A, either as varied or at all, and was invalid and of no legal force or effect.

iv. In the premises, the decision involved jurisdictional error and errors of law on the face of the record and should be quashed.

f. Errors of law in misconstruing valid conditions: The decision involved jurisdictional error and errors of law on the face of the record insofar as the delegate misconstrued and misapplied the valid conditions on the approval:

i. Condition 3: The delegate erred in law in concluding that the plaintiff had failed to comply with condition 3 because the plaintiff had failed to provide training ‘in accordance with the SLED regulatory requirements’, relevantly identified by reference to ‘simulations’ and other guidance described in certain ‘assessor guides’, on the basis that certain observed activities appeared to not involve a ‘bystander’; or not involve written briefing notes; or not involve the numerical marking of briefing, contemporaneous, and debriefing notes (as opposed to another form of assessment); or a trainer appeared to be under the weather.

ii. Condition 7: The delegate erred in law in treating each instance of non­compliance by an individual trainer with any condition in the document titled ‘NSW Security Licence Course Conditions of Approval’ dated July 2020 as non-compliance by the plaintiff as an organisation with condition 7.

iii. Condition 7: The delegate erred in law in finding, in respect of Mr Bendt and Mr Yates, that ‘[t]he fact that STAR no longer uses these two Trainers is not relevant, as SLED's concerns relate to STAR's ability to ensure that their Approved Trainers comply with the Conditions of Approval’, whereas the plaintiff's decision to cease using those trainers was a lawful means of complying with condition 7 and could not lawfully be viewed as irrelevant.

iv. Condition 7A: The delegate erred in law in construing condition 7A as requiring the nominated person to determine, and determine correctly, whether each Approved Trainer had strictly complied with all of the lawful conditions in the document titled ‘NSW Security Licence Course Conditions of Approval’ dated July 2020, whereas condition 7A relevantly required no more than that the nominated person ‘complete a direct observation and supervision report for each Approved Trainer regarding their delivery and assessment of each practical simulation contained with the 1AC Security Licence Course’ and provide that report to SLED.

v. In the premises, the decision involved jurisdictional error and errors of law on the face of the record and should be quashed.

Declaratory relief in respect of invalid conditions

2. Pursuant to s 69 of the Supreme Court Act 1970 (NSW), declare that the purported conditions numbered 2, 3, 4, 7, 9, 10, 11, 12, and 17 in the document titled ‘NSW Security Licence Course Conditions of Approval’ dated July 2020, purportedly imposed as ‘conditions’ on the plaintiff's approval under s 27A of the Security Industry Act 1997 (NSW) by a delegate of the Commissioner, were not ‘conditions’ imposed on the plaintiff's approval within the meaning of that section and are invalid and of no legal force or effect.

Particulars

a. The power given to the defendant by s 27A of the Act to impose ‘conditions’ on an organisation's approval is impliedly limited by the following requirements:

i. the conditions must have certainty of expression and certainty in operation;

ii. the conditions must specify what the organisation is to do or refrain from doing in a way that is sufficient to enable the organisation to know whether particular conduct will imperil the approval or not, and to make clear to the Commissioner or delegate what tests she is to apply such that conclusions as to compliance or non-compliance are not vitiated by error of law;

iii. the conditions must proceed by reference to objective standards and criteria such that the fact of compliance or non-compliance is clearly ascertainable without opinion or the exercise of judgment or discretion;

iv. the conditions must be capable of enforcement by a court, including in a criminal prosecution for non-compliance under s 27A(3);

v. the conditions must not vary or depart from the provisions of the Act; and

vi. the conditions must be legally reasonable.

b. The following purported conditions in the document titled ‘NSW Security Licence Course Conditions of Approval’ do not satisfy the requirements pleaded above and at least to that extent are invalid and of no legal force or effect:

i. ‘Condition No. 2’ insofar as it provides that the plaintiff ‘must ... comply with the Code of Conduct contained in Chapter 2’;

ii. ‘Condition No. 3’ insofar as it provides that training, assessment or instruction ‘must be conducted ... in accordance with the SLED regulatory requirements’, and in particular, each ‘Assessor Guide’;

iii. ‘Condition No. 4’ insofar as it provides that the plaintiff ‘must comply with the VET Quality Framework (see Chapter 4)’, and in particular, the ‘Principles of Assessment’ described in clause 1.8 of the Standards for Registered Training Organisations 2015 (Cth);

iv. ‘Condition No. 7’ insofar as it provides that the plaintiff ‘must ensure that all Approved Trainers ... comply with: these Conditions of Approval, the Code of Conduct in Chapter 2, requirements for Approved Trainers contained in Chapter 5, and SLC delivery requirements in Chapter 9’; and

v. So much of the conditions (including 7, 9, 10, 11, 12, and 17) as purport to establish, regulate, and require the plaintiff to comply with, the non-statutory application process described in Chapters 8 and 9 for seeking the further exercise by the Commissioner of an undefined discretion to permit or refuse to permit the plaintiff to provide training, assessment and instruction of a kind identified in Chapter 3 to particular cohorts of students on particular dates.

c. Pursuant to s 48(2)(b) of the Act, the Governor may make regulations for ‘the approval of training courses for persons in the security industry, and the accreditation of trainers and instructors to conduct security industry competency training’, and no such regulations have been made.

3. Pursuant to s 69 of the Supreme Court Act 1970 (NSW), declare that ‘Condition 7A’ purportedly imposed on the plaintiff's approval under s 27A of the Security Industry Act 1997 (NSW) by a delegate of the Commissioner in May 2021 was not a ‘condition’ imposed on the plaintiff's approval within the meaning of that section and is invalid and of no legal force or effect.

Particulars

a. The plaintiff repeats and relies on the statutory limits on the power to impose ‘conditions’ under s 27A particularised in paragraph 2(a) above.

b. The text of ‘Condition 7A’ was expressed at a level of generality that was too high and too uncertain to satisfy the statutory limits.

c. The text of ‘Condition 7A’ provided, in terms, that the action required of the plaintiff for compliance ‘is not limited to’ the actions specified in the condition.

d. On or about 25 May 2021, an officer who was not a delegate of the defendant under s 27A purported to vary or add to the purported condition by emailing ‘further instruction’ to the plaintiff as to what the plaintiff must do to comply.

e. The delegate erroneously concluded: ‘In the event that STAR had any doubts as to the scope and effect of Condition 7A it was its obligation to seek clarification to ensure it understood the regulator's requirements.’

f. In the premises, ‘Condition 7A’ was not a ‘condition’ imposed on the plaintiff's approval within s 27A and is invalid and of no legal force or effect.

Mandamus in respect of the defendant's list of approved organisations

4. Pursuant to s 69 of the Supreme Court Act 1970 (NSW) and clause 43(1) of the Security Industry Regulation 2016 (NSW), order that the defendant cause the plaintiff's name to be restored to the list of approved organisations maintained and published by the defendant for the purposes of that clause forthwith.

Particulars

a. Clause 43 of the Security Industry Regulation 2016 (NSW) imposes a duty on the defendant to publish on the website maintained by the Security Licensing and Enforcement Directorate a list of persons or organisations approved from time to time by the Commissioner for the purposes of s 27A of the Act.

b. By reason of prayer 1, the plaintiff is an organisation approved by the Commissioner for the purposes of s 27A of the Act.

Declaratory relief in respect of the plaintiff's training, assessment and instruction

5. Pursuant to s 69 of the Supreme Court Act 1970 (NSW), declare that the plaintiff is authorised under the Security Industry Act 1997 (NSW) to provide persons to carry on the security activities of providing training or instruction in relation to, and assessing another person's training, instruction or competencies in relation to, acting as an unarmed guard or crowd controller.

Particulars

a. The plaintiff holds a master licence of class MC within the meaning of s 10(1)(c) of the Act, which has not been suspended or revoked under ss 25 or 26.

b. As the holder of a master licence, the plaintiff is authorised to provide persons to carry on security activities pursuant to ss 4(1) and 7(1) of the Act.

c. Security activities referred to in s 4(1) include ‘providing persons to carry on any security activity’ (s 4(1)(m)) including:

i. ‘providing training or instruction in relation to’ (s 4(1)(j)); and/or

ii. ‘assessing another person's training, instruction or competencies in relation to’ (s 4(1)(k)),

acting as an unarmed guard or crowd controller (s 4(1)(a)-(c)).

6. Pursuant to s 69 of the Supreme Court Act 1970 (NSW), declare that each of the following courses:

a. ‘CPP20218 Certificate II in Security Operations’; and

b. ‘NSW Security Licence Course 1A Unarmed Guard and 1C Crowd Control Security Officer’ identified in Chapter 3 of the document titled ‘NSW Security Licence Course Conditions of Approval’ dated July 2020 and the corresponding ‘SLED Approved Trainer Assessment and Marking Guide’ dated July 2020,

is:

c. ‘training, assessment and instruction that is approved’ for class 1A and 1C licences within the meaning of s 15(1)(d) of the Security Industry Act 1997 (NSW); and

d. ‘approved, training, assessment and instruction’ for class 1A and 1C licences within the meaning of ss 17(7), 21A(1), and 23E of the Security Industry Act 1997 (NSW).

Particulars

e. The defendant's approval of those courses as training, assessment and instruction for class 1A and 1C licences is to be inferred from:

i. the terms of the defendant's documents identified in paragraph (b) above; and/or

ii. the defendant's past decisions to approve the plaintiff providing those courses for class 1A and 1C licences from time to time.

7. Pursuant to s 69 of the Supreme Court Act 1970 (NSW), declare that it is not ‘false, misleading or deceptive’ or a ‘wilful concealment of a material fact’ within the meaning of s 33(1) of the Security Industry Act 1997 (NSW) for the plaintiff to represent that it provides training, assessment and instruction that is approved by the defendant for class 1A and 1C licences under the Security Industry Act 1997 (NSW).

8. Costs.

9. Such further order or other relief as the Court considers appropriate.”

17. Thus, it can be seen that Star initially sought the following relief under ss 69 and 75 of the Supreme Court Act:

1. An order quashing the revocation decision.

2. A declaration that conditions 2, 3, 4, 7, 9, 10, 11, 12 and 17 in the document entitled “NSW Security Licence Course Conditions of Approval” dated July 2020 purportedly imposing conditions on Star’s s 27A approval and made by a delegate of the Commissioner were not conditions, being invalid and of no legal force or effect. A similar challenge was brought to condition 7A, purportedly imposed at a later time.

3. An order that the Commissioner restore Star’s name to the list of approved organisations, maintained and published by the Commissioner under cl 43(1) of the Security Industry Regulation 2016 (NSW).

4. A declaration that Star is authorised to provide training, assessment and instruction in relation to acting as an unarmed guard or crowd controller for the purposes of the Act, and other declaratory relief.

The issues are narrowed

18. On the final day of hearing, Mr King clarified that the primary relief sought was that the decision be quashed. It was accepted that the relief in the nature of mandamus and declaratory relief were not necessary for the disposition of the case. It was common ground that if the revocation decision was quashed, the Commissioner would restore Star’s name to the list mentioned above and no formal order would be necessary.

19. I also sought clarification from Mr King during final submissions as to whether all of the grounds of review in the further amended summons were pressed. It was accepted that there was some repetition and Mr King clarified that the matters for the court’s determination are as follows.

Denial of procedural fairness (ASQA Audit): 1(a)(i)-(viii)

20. Mr King clarified that ground 1(a) comprised two separate complaints. First, grouping together points (i)-(iii), Ms Stockley obtained the ASQA report and made other inquiries of ASQA (to form the “ASQA Understanding”) which on her view yielded information adverse to Star, without informing Star of the nature or content of the information or allowing Star to be heard on this issue. It was clarified that the obtaining of the report was not a discrete complaint.

21. Secondly, grouping together points (iv)-(vi), Ms Stockley relied on the ASQA material to find that Star had been dishonest and deceitful, without including this concern on the show cause notice to Star or providing it with an opportunity to be heard in relation to these conclusions, not obviously open on the material.

Denial of procedural fairness (alleged tampering with student records): 1(b)(i)-(v)

22. Mr King submitted that ground 1(b) comprised one global complaint, namely, that Ms Stockley found that Star’s response to the tampering concern in the show cause notice to be “deliberately unhelpful” without affording it an opportunity to be heard in relation to this adverse finding not obviously open on the material. Mr King clarified that a related complaint under this ground was that the show cause notice was not sufficiently specific on this issue, such that, on Star’s case, the findings made in the revocation decision went beyond what was fairly disclosed in the show cause notice.

Denial of procedural fairness (inadequate show cause notice):1(c)

23. No further clarification was needed beyond the pleadings.

Apprehended bias: 1(d)(i)-(vi)

24. Ground 1(d)(ii) was not pressed.

25. Grounds 1(d)(iv), (iv)(1) and (iv)(2) were characterised as “providing context”, but Mr King added that (iv)(2) was important as it referred back to unfair procedures followed by Ms Stockley. Ground 1(d)(v) was a separate allegation of prejudgment which Mr King submitted that I would be satisfied of considering the cumulative effect of the arguments under this ground.

Errors of law in applying invalid conditions: 1(e)(i)-(iv)

26. Ground 1(e)(i) referred to the part of the pleadings which outlined why, on Star’s case, the purported conditions imposed on the s 27A approval were invalid and of no legal effect; (ii) and (iii) are two separate complaints flowing from this. Mr King also noted the submissions put in Star’s opening written outline, raising the issue of whether any decision was made at all (in 2014 and 2020) to impose conditions on approval.

Errors of law in misconstruing valid conditions: 1f(i)-(v)

27. Mr King clarified that ground 1(f) was in the alternative to ground 1(e) in that it proceeded on the basis that the conditions were valid.

28. Ground 1(f)(i) turned on how “condition 3” should be correctly construed, that is, whether it imposes a standard of absolute liability or whether there is some discretion afforded to approved organisation in applying with the condition. The same argument of misconstruction was raised in respect of “condition 7” (ground 1(f)(ii)) and “condition 7A” (ground 1(f)(iv)). Ground 1(f)(iii) was not pressed. Star’s contention was that the effect of these errors was that the revocation decision involved jurisdictional error and errors of law on the face of the record and should be quashed (ground 1(f)(v)).

Declaratory relief in respect of invalid conditions

29. Mr King clarified that he did not seek freestanding declaratory relief; rather, the pleadings under ground 2 with respect to the invalidity of certain conditions purportedly imposed on Star’s approval were only pressed insofar as they were referenced above in ground 1(e)(i) to go toward quashing the revocation decision.

30. Mr King also noted that grounds 2(b)(iii) and (v) were not pressed, and that ground 2(c) was not necessary for the argument.

Remaining matters

31. Ground 3 was pressed insofar as it was relevant to ground 1(e); but Mr King did not press grounds 4, 5, 6 or 7.

32. Before turning to consider the relevant evidence and submissions, I would briefly note two further matters.

33. First, given that complaint was made about conditions purportedly imposed either in 2014 or 2020, the Commissioner argued that any challenge to their validity was out of time by reason of r 59.10(1) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). For reasons which will become apparent, it has not been necessary for me to determine any extension of time.

34. Secondly, as a result of the amendments to ground 2 and its amalgamation with ground 1(e), it remained slightly unclear exactly which conditions are said by Star to be invalid; condition 4 being but one example of this. Again, for reasons which will become apparent, it has not been necessary for me to determine this issue either.

Primary complaint: Denial of procedural fairness

35. Despite the multiplicity of bases upon which Star sought to impugn the revocation decision, the primary complaint was of a denial of procedural fairness in three respects:

1. In making the revocation decision the delegate obtained a copy of a report from ASQA without giving notice of that fact to Star and then used that report to make adverse findings of deliberate deception against Star without affording them the opportunity to be heard;

2. Without notice being provided to Star, the delegate made findings that Star had responded to the NSC by being “deliberately unhelpful” in its submissions; and

3. The delegate failed to provide sufficient particulars in the NSC of Star’s alleged “systemic” non-compliance to enable it to be properly heard on that issue thus denying them procedural fairness.

36. Of these three separate complaints, the Commissioner accepted that the delegate had obtained a copy of the ASQA report and relied on it without advising Star of that fact but submitted there was no requirement to do so in the circumstances and, even if there was, any breach of procedural fairness was not material. The Commissioner denied that there had been any denial of procedural fairness in relation to the second and third broad complaints.

37. At the beginning of the hearing, I enquired of counsel whether if I was satisfied that there had been any material denial of procedural fairness that would be a sufficient basis to quash the decision. Senior counsel for the Commissioner accepted that if I was satisfied there was a material denial of procedural fairness there would be “some force in simply remitting without deciding the other matters”. He did not urge that course as his position was that all grounds of review would be rejected on their merits, but he accepted that it would be open to make the decision on particular grounds. Mr King had no objection to the course either. 1

38. Given the significance of my finding on procedural unfairness, I propose to consider that question first.

The evidence

39. A considerable amount of evidence was adduced, and submissions directed at the grounds of review other than those alleging a denial of procedural farness. I have confined the following summary of the evidence to those discrete parts that are potentially relevant to the allegation of a denial of procedural fairness.

40. The evidence adduced at the hearing relevant to procedural unfairness fell into three broad categories:

1. Evidence, largely in documentary form, that showed the procedural history of the matter and the circumstances of the alleged procedural unfairness;

2. Star’s evidence as to what material would have been put to SLED had it been afforded the opportunity to do so;

3. Evidence relied upon by the Commissioner to establish that there had been no denial of procedural fairness and, even if there had, it was not material.

41. I shall deal with this evidence in turn.

Key documents and evidence on the issue of procedural fairness

42. As stated above, Star became an approved organisation under the Act in December 2014, this approval being subject to certain conditions.

43. Although there initially do not appear to have been any difficulties with Star’s compliance, from 2018 SLED perceived there to be non-compliance with terms of their approval and from 2020 SLED issued four NSCs to Star (or its trainers) under the Act giving notice that consideration was being given to revocation of various approvals.

44. First, on 8 April 2020, Star was provided with an NSC indicating that consideration was being given to revoking the approval of approved trainer Lukas Bendt. Star provided submissions and the approval for Mr Bendt to train was revoked on 9 April 2020.

45. Secondly, on 23 December 2020, SLED issued a further NSC to Star as to why its approval should not be revoked. Star provided submissions in response on 14 January 2021. On 13 May 2021, SLED decided not to revoke Star’s approval, but imposed a further condition on Star’s approval in relation to compliance monitoring (condition 7A).

46. Thirdly, on 30 July 2021, after a show cause process, a decision was made by SLED to revoke the approval of one of Star’s trainers, Stephen Yates. SLED also advised Star that two of its courses were not approved. On 6 August 2021, Star brought an urgent application in this court seeking review of the decision in relation to the two courses; Button J dismissed the application that day.

47. Between 28 July and 5 August 2021, ASQA conducted an audit of Star. I have summarised some of the evidence as to what was discussed at that audit below.

48. The fourth and final NSC, the subject of these proceedings for judicial review, was dated 11 August 2021. Star’s submissions in response were dated 24 August 2021 and the revocation decision was made on 10 September 2021. On 13 September 2021, the Commissioner confirmed that an internal review of the revocation would not be granted.

49. The three key documents relevant to the alleged breach of procedural fairness were: the NSC issued on 11 August 2021, Star’s response to the NSC; and the revocation decision and schedule of reasons.

The notice to show cause

50. In the NSC dated 11 August 2021, Ms Stockley stated that:

“As a result of repeated non-compliance by STAR with its Conditions of Approval and concerns about STAR’s ability to comply with its Conditions of Approval in the future, I am considering revoking STAR’s approval pursuant to section 27(2)(b) of the Act.”

51. Ms Stockley indicated that the particular issues of concern were set out in the schedule of reasons and that Star had an opportunity to provide written submissions in response to the NSC.

52. In section A of the schedule of reasons, Ms Stockley set out the details of the three previous NSCs issued to Star and its trainers, as outlined above. Section B read as follows:

“There is a lengthy history of warnings, cautions and the issuing of infringement notices to STAR and its Approved Trainers. For the purpose of considering whether STAR’s approval should be revoked, consideration is confined to STAR’s more recent history between 2018 and 2021.

Particulars of these actions, including copies of Official Cautions and the recent Penalty Infringement Notice issued, are at Annexure 16.”

53. Section C was entitled, “Failure to implement proposed Reforms/ongoing Breach of Conditions” and raised the allegation that Star had exhibited ongoing non-compliance with conditions 3, 4 and 7. Condition 3 provided that specified training, assessment or instruction must be carried out “in accordance with SLED regulatory requirements”; condition 4 provided that “[t]he Approved Organisation must comply with the VET Quality Framework”; and condition 7 specified that Star must ensure that its trainers are aware of and compliant with the conditions of approval and other regulatory requirements. Ms Stockley noted that despite Star’s assurances given after the 23 December 2020 NSC, “they have been ineffective in ensuring that STAR’s Approved Trainers comply with the Conditions of Approval, and therefore STAR has failed to comply with Condition 7”. She further stated:

“STAR’s non-compliance is serious and systemic and, due to the fact that previous undertakings by STAR have been unsuccessful in ensuring compliance, there is a concern as to whether STAR is able to prevent future and on-going non-compliance as required by Condition 7.”

(Emphasis added.)

54. Section D related to concerns in relation to Star’s compliance with condition 7A, imposed in May 2021, again following the 23 December 2020 NSC. This condition provided, inter alia:

“The Nominated Person, Compliance Manager or Compliance Consultant must complete a direct observation and supervision report for each Approved Trainer regarding their delivery and assessment of each practical simulation contained within the 1AC Security Licence Course (‘SLC’). The supervision report must be provided to SLED for review before each Approved Trainer can be approved as a lead trainer/assessor for subsequent SLCs delivered on behalf of Star.”

55. By way of background, following the imposition of condition 7A, Star had engaged Andrew Doslea in the capacity of “compliance manager” and Mr Doslea produced “trainer audit reports” in relation to three of Star’s approved trainers: Shane Smith, John Stoodley and Stephen Yates.

56. The report in relation to Mr Yates was provided by Star to SLED on 8 June 2021; Mr Doslea certified that Mr Yates “complied with the delivery and assessment requirements for the relevant [Security Licence Course (‘SLC’)] assessments”. Attached to the report in relation to Mr Yates were “candidate workbooks” and portfolios of evidence for the following students: Soeters, Ali and Jamal.

57. Ms Stockley noted problems with the “observation checklists” completed by Mr Yates in respect of these three students and the assessment outcomes generally. She also referred to an interview with Mr Malik on 24 June 2021 conducted during a SLED audit; one of the concerns raised was that “Mr Malik demonstrates a lack of regard for his obligation to ensure that SLED SLC Assessments are carried out in accordance with assessment instructions”. Mr Doslea was also interviewed by SLED on this same day and, in light of this, Ms Stockley raised a concern in the NSC that he “does not have the correct understanding of the Assessment Instructions”.

58. Ms Stockley went on to state this in the NSC:

“The documents furnished by STAR in response to Condition 7A and the responses provided by Mr Malik and Mr Doslea at interview are also evidence that, to the extent that any validation and moderation frameworks were in place at STAR, they have been ineffective in ensuring consistency in assessment judgments made by STAR’s Approved Trainers.”

59. A further trainer audit report in respect of Mr Yates was provided to SLED by Star on 11 June 2021. It attached candidate workbooks and portfolios of evidence for the same three students (Soeters, Ali and Jamal).

Section E: Tampering with student records

60. Section E of the NSC was headed “Tampering with Student Records”. The events described in this section of the NSC were the subject of lengthy evidence at the hearing. The tampering allegations in the NSC can be briefly summarised as follows.

61. Condition 2 of Star’s conditions of approval provided, inter alia, that it must “comply with the Code of Conduct contained in Chapter 2 of this document”. Section 2.9(b) of the Code of Conduct states:

“When providing SLED with information, Approved Organisations and Trainers must not:

provide misleading or false information

deliberately omit relevant information

falsify records or other documents.”

62. On 16 June 2021, SLED auditors attended Star’s Liverpool campus and sought to obtain original records in relation to 18 students, including candidate workbooks containing observation checklists. I note in passing that the powers of SLED auditors are contained, inter alia, in s 39K of the Act. The candidate workbooks were provided to the SLED auditors, who, during the initial on-site inspection, observed that the observation checklists for all 18 students in the particular course were unmarked for a range of assessment criteria. Despite this, Mr Yates had recorded the result of “satisfactory” for the relevant tasks. Following this initial inspection, the workbooks were returned as Mr Yates was undertaking further training that afternoon and for photocopying.

63. When the 18 workbooks were returned to the auditors later that day after training, “it was observed that fourteen of the eighteen original Candidate Workbooks had been marked with a red ink tick against the previously unmarked Assessment Criteria”. Further:

“At no time did Mr Yates, Mr Malik, Mr Doslea, Ms Dionela or any other members of staff of STAR inform SLED auditors that the original Observation Checklists had been altered between when the SLED auditors first obtained the documents under their statutory powers on 16 June 2021 and the return of those documents to them later that day.”

64. A further concern was noted in relation to the records of students Soeters, Ali and Jamal: namely, that the observation checklists initially obtained on 16 June 2021 had an absence of certain ticks which were present on the equivalent records provided to SLED on 8 June 2021; and a comparison of the observation checklists provided to SLED on 8 and 11 June 2021 compared with those obtained on 16 June 2021 revealed that certain ticks against the same items were “different in shape and position”.

65. Mr Malik provided an explanation for the changes. When asked about them in the audit interview on 24 June 2021 he explained that on 16 June 2021 he retrieved the workbooks back from SLED auditors to enable Mr Yates to carry out further student assessments and told Mr Yates to “check the documents” and/or “start the role-plays”.

66. In the NSC, Ms Stockley set out the following “concerns” about this:

“1. The copies of the Observation Checklists of SOETERS, ALI and JAMAL for Assessment tasks 3, 4, 5, 6, 11, 12, 13 and 14 submitted by STAR with the Trainer Audit Report for Mr Yates on 8 and 11 June 2021 were not true and correct copies of the original documents.

The submission of such copies may be evidence of an attempt by Star to mislead and deceive SLED.

2. On 16 June 2021, between the time that SLED auditors took initial possession of the original Candidate Workbooks for all students and the time when SLED auditors took final possession of the original documents, STAR personnel altered the original Observation Checklists for fourteen of the eighteen students by inserting ticks against Assessment Criteria that had not been marked (as referred to in Table 1).

The documents were obtained by SLED auditors pursuant to their statutory enforcement powers and should not have been altered or amended after those powers were exercised.

The tampering with original student documents may be evidence of an attempt by STAR to mislead and deceive SLED.

3. As the ticks on the Observation Checklists of the copies of Assessment Tasks 3, 4, 5, 6, 11, 12, 13 and 14 provided on 8 and 11 June 2021 (students SOETERS, ALI and JAMAL) are different to the ticks appearing on the original Observation Checklists for Assessment Tasks 3, 4, 5, 6, 11, 12, 13 and 14 obtained by SLED auditors on 16 June 2021 for those three students (post-tampering by STAR personnel), this may be evidence that STAR has twice attempted to mislead and deceive SLED in relation to these three students.

4. As the original Observation Checklists for the eighteen students of SLC042 had not been marked as satisfactory (by ticking all of the Assessment Criteria), none of the eighteen students should have been provided with an overall assessment result of ‘Satisfactory’ by Mr Yates.”

(Emphasis added.)

Sections F and G of the NSC

67. Section F outlined SLED’s concerns about the “methodology used for the preparation of trainer audit reports”; that is, the compliance with condition 7A and Mr Doslea’s conduct as compliance manager. Ms Stockley stated this in the NSC:

“1. The submission of student evidence that had not been reviewed by Mr Doslea, whilst certifying Mr Yates’s compliance as part of the Trainer Audit Report:

was misleading

demonstrates a lack of genuine commitment by STAR to ensure that its Approved Trainers engage in compliant assessment practices.

did not fulfil the requirements of Condition 7A or the further instruction provided to STAR as per Annexure 26.”

(Emphasis added.)

68. Finally, section G was a “Summary of Concerns” and read in its entirety:

“The Schedule has identified specific issues that raise concerns about STAR’s willingness and ability to comply with its Conditions of Approval and its ability to deliver the Security Licence Course to the standard required by the Commissioner in the future.”

Star’s submissions in response to the NSC

69. On 24 August 2021, Timothy Coleman, solicitor for Star, provided SLED with written submissions as invited by SLED. Attached to the submissions was a table of 16 pages addressing each of the “concerns” set out by SLED in the NSC. Star’s position was that:

“… it is a capable and experienced training organisation and has delivered its courses to a high standard over a long period of time. Likewise, over a long period of time, STAR’s management and trainers have worked harmoniously with SLED to comply with their regulatory conditions of approval.”

70. Importantly, at [6]-[8] of Star’s submissions, it stated:

“Independently of meeting SLED’s requirements, STAR are required to satisfy the regulatory requirements of Australian Skills Quality Authority (ASQA) STAR notes that SLED had requested ASQA to undertake an audit on STAR in or around April 2021, despite the fact that the next scheduled ASQA audit was not supposed to occur until 2024.

ASQA’s audit on STAR on 28 and 28 July 2021 was rigorous and thorough …

Following ASQA’s audit, ASQA informed STAR that they are fully compliant with ASQA’s requirements and have found no material non compliances. STAR have informed SLED of the outcome of ASQA’s audit. The ASQA audit does not indicate that there is a basis for the concerns expressed by SLED.”

(Emphasis added.)

71. Star submitted its view that the heavy-handed oversight by SLED since June 2020 gave rise to a “risk of apprehended bias”. It was around this time that Star and one of its trainers (Mr Yates) made a complaint against SLED and one of its auditors in particular. Star noted that it has held a “training organisation licence since 2007” and that it has had “until quite recent times, an uncontroversial history and a good and co-operative working relationship with SLED officers. SLED have not alleged until recently that STAR, as an organisation, does not have the capacity to deliver compliant training”. Since the complaint against SLED, Star submitted that SLED have:

“12.1 issued a show cause notice to STAR on 23 December 2020;

12.2 revoked the accreditation of two of STAR’s trainers, Mr Bendt and Mr Yates;

12.3 issued further non-compliance notices and cautions to STAR and Mr Smith;

12.4 engaged in an extremely high level of auditing. By way of example, between 30 June 2020 and 15 July 2021 alone, SLED have conducted a total of 21 Audits that have been reported by SLED, 5 interviews with STAR’s staff, and a number of further audits which have been conducted but not reported on by SLED;

12.5 refused to issue course approval for two of SLEDs courses, even though the nominated trainers for those two courses remain accredited (John Stoodley and Shane Smith), and in the circumstances that SLED have confirmed that the performance of both trainers is satisfactory; and

12.6 issued a further show cause notice to STAR on 11 August 2021 …”

72. Star submitted that the issues raised by SLED in the 23 December 2020 NSC had been addressed and that “SLED should treat the past non compliances as resolved”. Star set out the measures that it had implemented in response to the 23 December 2020 show cause process and rejected SLED’s assertion in the most recent NSC that such measures have been “ineffective”. And further:

“STAR have put in place and implemented all of the strategies agreed, and STAR say effective compliance with conditions 7 and 7A has been achieved. It is apparent from the following section addressing the complaints made against STAR’s trainers, that at the time of the issue of the August 2021 Show Cause Notice, the performance of STAR’s trainers was acceptable. In particular, SLED have assessed the performance of Mr Stoodley and Mr Smith as compliant.”

73. Star then addressed the “complaints made in respect of the performance of STAR’s trainers” and in particular challenged the indirect criticism of trainers Mr Smith and Mr Stoodley through the perceived unreliability in Mr Doslea’s practices. At [30], Star submitted that:

“Complaints in SLED’s August 2021 Show Cause Notice can be divided into a number of different categories, including:

30.1 Complaints that go to the quality of the training provided to STAR’s students;

30.2 Complaints relating to STAR’s compliance with administrative procedures; and

30.3 Complaints relating to the honesty and integrity of STAR as a training organisation.”

(Emphasis added.)

74. Star submitted that “[t]here appears to be no complaints made by SLED that relate to the first category”, and that any such complaints are “historical”. As for the second category, Star submitted that “administrative” non-compliance related to “failing to properly sign and date student attendance sheets, ensuring that signatures and ticks are recorded in specific areas on documents and producing records relating to corrections made”. Star did not deny that some non-compliance had occurred, but submitted that it was a result of oversight, was being managed and minimised, was a series of “one-offs” and, “the fact that non compliances have occurred is not evidence in itself that the training has not been properly performed or … of dishonesty”.

75. As for the third category, Star submitted:

“SLED have not made direct allegations that Mr Malik or STAR as an organisation have engaged in dishonest practices. To the extent those allegations are not directly made but are made by way of innuendo those allegations are not made out.”

(Emphasis added.)

76. Star then addressed what in its view were the “remaining allegations”: “concerns relating to STAR’s reports under condition 7A”; “tampering with student records”; and “methodology used for the preparation of trainer audit reports”.

77. In relation to condition 7A, Star submitted that there appeared to have been a misunderstanding as to what the condition required of the compliance manager, Mr Doslea; and “[n]otwithstanding the parties’ different interpretations, Mr Doslea has confirmed that he will as part of his compliance function satisfy himself that trainers are correctly marking the student assessments”.

78. In relation to the tampering issue, Star submitted that SLED’s allegations were “unclear”, but nonetheless attempted to respond to four discrete allegations.

1. As for the allegation that the copies of the observation checklist of the three students (Soeters, Ali, Jamal) attached to the trainer audit report for Mr Yates and provided to SLED on 8 and 11 June 2021 “were not true and correct copies of the original documents”, Star rejected this. Star submitted that the copies provided to SLED represented the state of those documents at the time, and further, prior to them being provided, copies were made and “marked up to date by Mr Yates”, while the original versions were not. “This resulted in two versions of the documents being created and used.”

2. As for the allegation that between the time SLED took “initial” and “final” possession of the candidate workbooks on 16 June 2021 alterations had been made, Star submitted that a number of workbooks were given back to Star after “initial” possession and assessment and marking of students continued. Star submitted: “There is no explanation given in the [NSC] as to why STAR may have intended to mislead or deceive SLED”.

3. As for the allegation that the different versions of the Soeters/Ali/Jamal checklists had tick marks in different places/styles, which “may be evidence that STAR were attempting to mislead or deceive SLED a second time”, again Star submitted that SLED had not explained “how or why” this deception is said to have occurred, and that the confusion arose due to copies being created of the relevant documents, marked at different times.

4. Finally, as for the allegation that as the “original” observation checklists of the 18 students had not been properly completed, Mr Yates should not have recorded an overall grade of “satisfactory”, Star assumed that the word “original” was used to identify the documents provided to SLED on 8 and 11 June 2021 and submitted that the relevant course was completed progressively by students over a three week period who were assessed accordingly. In hindsight, it would appear that SLED used the word “original” to refer to “initial possession” on 16 June.

79. Finally, Star acknowledged that it had directed Mr Doslea to comply with SLED’s interpretation of condition 7A in relation to the trainer audit reports.

80. Star submitted in conclusion:

“The bulk of the complaints raised in the August 2021 Show Cause Notice are one off non compliances which are administrative in nature. The bulk of those complaints were directed to Mr Yates who is no longer a Star trainer. All of STAR’s current trainers are accredited and the position appears to be that SLED have confirmed that all of Star’s current trainers are competent and compliant.

To the extent that SLED question STAR’s willingness to comply with SLED’s requirements, STAR’s position is that STAR:

68.1 recognises, understand and respects the statutory function and powers of SLED;

68.2 will comply with the conditions imposed by SLED; and

68.3 will work co-operatively with SLED.

STAR does not accept that the non compliances identified in the August 2021 Show Cause Notice are made out or are sufficiently material to justify the revocation of STAR’s approvals.

However STAR do acknowledge that ongoing and improved dialogue with SLED officers would assist in clarifying SLED’s requirements.”

ASQA inquiries: Agreed facts

81. As stated above, independently of meeting SLED’s requirements, Star was required to satisfy the regulatory requirements of ASQA as it was an RTO. ASQA undertook an audit of Star on 28 and 29 July 2021.

82. The Commissioner accepted that after receiving the above response from Star, the subdelegate of SLED, Ms Stockley, noted Star’s assertions at [70] above, inter alia, that ASQA had “informed STAR that they are fully compliant with ASQA’s requirements and have found no material non-compliances and that “the ASQA audit does not indicate that there is a basis for the concerns expressed by SLED.” In response, Ms Stockley entered into email correspondence with ASQA staff and obtained a copy of the ASQA report. Having read it, she did not accept that Star’s categorisation of what ASQA had found in their recent audit of Star was accurate. She did not go back to Star to allow it the opportunity to be heard on that topic. Rather, she proceeded to revoke their authority without hearing from them further.

83. I will set out the terms of the Commissioner’s admissions and summarise the relevant evidence on this issue further below.

Notice of revocation

84. The final document of significance is the notice of revocation and the reasons for that decision.

85. In the notice of revocation, Ms Stockley indicated that having considered Star’s submissions, she had determined to revoke Star’s approval as an approved organisation. This act of revocation involved the removal of Star’s name from the list of approved organisations published on SLED’s website and the revocation of trainer approvals to conduct the SLC, including that of Mr Malik. Attached to Ms Stockley’s reasons were copies of Star’s submissions and schedule with comments and conclusions inserted by SLED.

86. Ms Stockley’s schedule of reasons provided a summary of SLED’s comments and conclusions regarding the revocation under different headings.

Systemic and ongoing non-compliance with conditions of approval

87. The first section was entitled “Systemic and ongoing non-compliance with Conditions of Approval”. That section included Ms Stockley’s finding that “STAR and a number of its Approved Trainers have, for a significant period of time up to the present, engaged in repeated breaches of the Conditions of Approval”, particularised in: the previous three NSCs; the “history of warnings, cautions and infringement notices”; the current NSC sections C, D, E; and the findings set out in the attachments to the reasons. Ms Stockley also set out a list of trainers involved in the non-compliance.

88. Ms Stockley stated that Star’s breaches of the conditions were “numerous” and “not confined to one area of training”. She also rejected Star’s submission that the breaches were largely “administrative”, writing:

“In the main, the Conditions that have been breached are ‘core’ Security Licence Course delivery and assessment requirements and involve unsatisfactory practices by STAR and its personnel that undermine the training and assessment practices required to be maintained in order to meet the standards required by the Commissioner.”

89. Ms Stockley listed the conditions breached by Star and its trainers between 7 December 2018 and 30 June 2021, which occurred repeatedly and in the face of numerous warnings and attempts at remediation and management by SLED.

Misleading information and deception by STAR

90. The reasons continued under this second heading:

“2. Misleading information and deception by STAR

As particularised in Attachment 1 and Attachment 2, I have found that STAR, through the conduct of its training staff and its Nominated Person Mr Malik, have engaged in conduct that has been intended to mislead and deceive SLED.

This has occurred through:

the provision of copies of Candidate Workbooks as part of the Trainer Audit Reports made on 8 and 11 June 2021 that had been altered and did not reflect the Approved Trainer’s assessments contained in the originals of these documents

the authorised and undisclosed alterations made to Candidate Workbooks on 16 June 2021, which had been obtained by SLED auditors pursuant to their authority under s.39K Security Industry Act 1997.

The above conduct by STAR and its personnel occurred following SLED issuing a Penalty Infringement Notice to STAR for a breach of Condition 2 (see pages 15-16, Annexure reference 16 of the NSC).”

(Emphasis added.)

91. In the attachment 1 to the schedule of reasons, SLED dealt with Star’s submissions in relation to tampering with student records at [49]-[53] and made the following conclusion:

“I view STAR’s response in relation to this matter to be deliberately unhelpful by seeking to confuse what is meant by the term ‘original documents’ in the NSWC. To the extent that there is any confusion (although the same confusion does not appear to exist in the Schedule of Responses from STAR), I note that STAR did not make any attempts to clarify this term with SLED in order to properly respond to the NSC.”

(Emphasis added.)

92. After making this finding about the alleged alteration of the candidate workbooks, Ms Stockley went on to make the following additional finding under the “misleading information and deception” heading which forms the basis of the complaint of procedural fairness:

“Although not included as a concern in the NSC, it is noted that STAR’s submission contains further information which is incorrect and misleading.

The assertion that SLED caused the recent audit by ASQA to be conducted is incorrect.

The assertion that ASQA had indicated to STAR at the conclusion of its audit that STAR was fully compliant with all of ASQA’s requirements is incorrect. I have found this claim to be deliberately misleading.”

(Emphasis added.)

Loss of confidence due to systemic failures and deceit

93. Under the third heading Ms Stockley wrote the following:

“3. Loss of confidence due to systemic failures and deceit

Having regard to:

i. the disproportionately high number and frequency of breaches of Conditions by STAR, when compared to other Approved Organisations

ii. the repeated failure by STAR to implement any effective regime to prevent ongoing breaches of Conditions, including the unsatisfactory methodology adopted for the supervision of its Approved Trainers by Mr Doslea

iii. the repeated alteration of student assessment evidence to mislead SLED

iv. the provision of incorrect and misleading information in submissions in response to the NSC

v. the factually incorrect and misconceived assertions in STAR’s submissions that SLED’s auditing was motivated by a complaint made by STAR against SLED’s Mr Dowd, and that there was a risk of apprehended bias by SLED

I have no confidence that STAR can be relied upon to deliver the Security Licence Course to the standard required by the Commissioner.”

(Emphasis added.)

94. Ms Stockley went on to state that SLED has devoted significant resources to monitoring and assisting Star which she regarded as no longer appropriate as “STAR’s level of co-operation and capacity to implement positive changes to its practices cannot be relied upon”.

95. Accordingly, Star’s approval under s 27A of the Act was revoked.

The Commissioner’s admitted facts

96. The Commissioner made the following admissions in its Response to Notice to Admit Facts dated 21 December 2021.

97. Star relied upon these admissions to submit that the court would find that there had been a breach of procedural fairness in relation to the ASQA documents. The Commissioner disputed that the admitted facts went that far. Given the lack of agreement as to precisely what was and was not agreed between the parties on this issue it is necessary to extract the relevant portions of the Notice to Admit Facts and replies in full. The “admissions” relied upon by Star and the responses were in these terms:

1. “In making the revocation decision, the decision-maker had regard to the ASQA Report.” This fact was admitted with the Commissioner further stating that “the ASQA Report was only considered to the extent that it showed that the content of the Report was not consistent with the representations made about the outcome of the audit in [Star’s] response to the notice to show cause. The ASQA Report was only obtained to verify the representations on this by [Star] in its Response to the Notice". [1]

   1. Tcpt, 29 March 2022, p 7(10-19).

2. “In making the revocation decision, the decision-maker proceeded on the basis that the ASQA Report was credible, relevant, and significant to [Star].” This fact was admitted but only to the extent that contents of the ASQA report was credible, relevant and significant to determining the accuracy of comments made by [Star] in its Response to the Notice”. [2]

   2. Fact 1.

3. “In making the revocation decision, the decision-maker did not provide [Star] with an opportunity to be heard in relation to the ASQA Report.” The Commissioner admitted this fact stating that “no such opportunity was required.” [3]

   3. Fact 2.

4. “In making the revocation decision, the decision-maker did not provide [Star] with an opportunity to be heard in relation to the conclusion that [Star]’s ‘submission in paragraph 8 of its covering letter and Item 2 on its Schedule of responses was ‘deliberately misleading’.” The Commissioner admitted this fact stating that “no such opportunity was required”. [4]

   4. Fact 4.

5. “In making the revocation decision, the decision-maker did not provide [Star] with an opportunity to be heard in relation to the conclusion that [Star’s] ‘submission relating to the outcome of the ASQA audit’ was ‘deliberately misleading’.” The Commissioner admitted this fact stating that “no such opportunity was required”. [5]

   5. Fact 5.

6. “In making the revocation decision, the decision-maker had regard to information provided by ASQA in response to ‘[e]nquiries made with ASQA in relation to the assertion made in paragraph 6’.” The Commissioner admitted this fact. [6]

   6. Fact 6.

7. “In making the revocation decision, the decision-maker had regard to information provided by ASQA to the effect that [Star] ‘was notified verbally by ASQA of the preliminary audit findings during their closing meeting on 5 August 2021’.” [7] The Commissioner admitted this fact.

   7. Fact 9.

8. “In making the revocation decision, the decision-maker had regard to information to the following effect: ‘Representatives from STAR were verbally advised by the ASQA audit team on 5 August 2021 that there were critical non-compliance issues identified. This included non-compliance with Standard 1.8 in relation to the qualification ‘CPP20218-Certificate II in Security Operations’ (the qualification that relates to the Security Licence Course).” The Commissioner admitted this fact “but only to the extent that ASQA Report identified that [Star] was not compliant with Clause 1.8 of the Standard RTOs 2015 in relation to a number of qualifications on scope (as referred to at paragraph 8 of Annexure 1 to the revocation decision), and that that information was materially different to the response to the Notice regarding the outcome of the audit. The [Commissioner] also notes that the quote in paragraph 11 of the Notice to Admit Facts does not reflect the terms of the revocation decision.” [8]

   8. Fact 10.

9. “In making the revocation decision, the decision-maker had regard to information to the following effect: ‘STAR was also verbally advised on 5 August 2021 by the ASQA audit team they had identified extensive critical non-compliance with the qualification ‘HLTAID003 – Provide first aid’ (which is a requirement for all security licence applications).” The Commissioner admitted this fact “but only to the extent that ASQA Report identified that [Star] was not compliant with Clause 1.8 of the Standards for RTOs 2015 in relation to a number of qualifications on scope (as referred to in paragraph 8 of Annexure 1 to the revocation decision), and that that information was materially different to the Response to the Notice regarding the outcome of the audit. The [Commissioner] also notes that the quote in paragraph 1 of the Notice to Admit Facts does not reflect the terms of the revocation decision.” [9]

10. “In making the revocation decision, the decision-maker proceeded on the basis that the information referred to in paragraphs 9, 10, 11 and 12 may lead ASQA to terminate STAR’s approval as a Registered Training Organisation (RTO).” The Commissioner admitted this fact stating “The [Commissioner] was aware that ASQA Report was preliminary and it was possible that no further action would be taken by ASQA. The [Commissioner] also notes that the quote in paragraphs 11 and 12 of the Notice to Admit Facts does not reflect the terms of the revocation decision.” [10]

11. “In making the revocation decision, the decision-maker proceeded on the basis that the information referred to in paragraphs 9, 10, 11 and 12 above was credible, relevant, and significant.” The Commissioner admitted this fact “but only to the extent that the information referred to in paragraphs 9, 10, 11 and 12 above was credible, relevant, and significant to verifying the representations on this issue by [Star] in its Response to the Notice. The [Commissioner] also notes that the quote in paragraphs 11 and 12 of the Notice to Admit Facts does not reflect the terms of the revocation decision.” [11]

12. “In making the revocation decision, the decision-maker proceeded on the basis that the information referred to in paragraphs 9, 10, 11 and 12 above was adverse to [Star].” The Commissioner admitted this fact “but only to the extent that the information provided by ASQA was materially different to [Star]’s representations in its Response to the Notice. The [Commissioner] also notes that the quote in paragraphs 11 and 12 of the Notice to Admit Facts does not reflect the terms of the revocation decision.” [12]

13. “In making the revocation decision, the decision-maker did not provide [Star] with an opportunity to be heard in relation to the information referred to in paragraphs 9, 10, 11, 12 and 13 above.” The Commissioner admitted this fact stating that “In making the ASQA inquiries the [Commissioner] was having regard to matters which [Star] raised itself in the Response to the Notice, which had not previously been raised by [Star]. The [Commissioner] also notes that the quote in paragraphs 11 and 12 of the Notice to Admit Facts does not reflect the terms of the revocation decision.” [13]

    9. Fact 11.

    10. Fact 12.

    11. Fact 13.

    12. Fact 14.

    13. Fact 15.

Evidence adduced by the parties on the question of materiality

98. It was common ground that in Star’s response to the NSC it submitted that following the ASQA audit on 28 and 28 July 2021 ASQA informed Stat that:

1. That Star was “fully compliant” with ASQA’s requirements;

2. That ASQA found no material non compliances; and

3. The ASQA audit does not indicate that there is a basis for the concerns expressed by SLED.

99. It is also common ground that SLED not only disagreed with those assertions but made a finding they were deliberately misleading without providing any notice to Star that they proposed to make such a finding.

100. The parties agreed that the Commissioner was required to afford procedural fairness to Star as an implied condition of the exercise of its statutory power under the Act; it was not suggested that this presumption did not operate due to a clearly indicated contrary intention in the Act: Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; [2016] HCA 29 at [75]. Given this agreement, I do not consider it necessary to set out the relevant provisions of the Act.

101. It was also accepted that, subject to materiality, if the court was satisfied there had been a failure to afford procedural fairness to Star then that would constitute jurisdictional error: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at 569 [60], citing Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at 89 [5], 91-101 [17]-[42], 143 [170].

102. Although these principles were agreed upon, the Commissioner did not accept that there had been any breach of procedural fairness in relation to the ASQA material for reasons I will address below. The Commissioner further submitted that even if the court was satisfied that there had been such a breach it was not material in the circumstances. The Commissioner adduced evidence to establish that position which was contested by Star. I propose to summarise some of that evidence below but before I do it is relevant to note what the parties agreed was the relevant test for materiality.

103. The parties agreed that the relevant test for materiality was set out by the majority in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441(“MZAPC”) at [2] and Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 (“SZMTA”) at [48]: Star had to establish a “realistic possibility” that the decision made “could” have been different had they not been denied procedural fairness. The parties also accepted that materiality was to be determined “as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined on the balance of probabilities”: MZAPC at [38].

104. Having regard to this test for materiality, the parties’ evidence, insofar as it is relevant to the submissions ultimately made, can be summarised as follows.

The parties’ evidence on materiality

105. I have already outlined the evidence relevant to the workbooks and “tampering issue” above at [55]-[57] and [62]-[65]. This is relevant to the finding that Star’s response on this issue was “deliberately unhelpful”.

106. Star also adduced evidence to establish what it could have provided to SLED on the ASQA issue had it been given the opportunity to do so.

107. Mr Malik’s evidence was that he would have taken the opportunity to put submissions before SLED to establish that its submissions regarding the ASQA audit were not deliberately misleading. [14] He would have sought advice from Star’s solicitors, gathered evidence subject to that advice and instructed Star’s solicitors to provide further evidence and submissions to SLED. This would have included the evidence of Lea Stevenson (at ASQA), Star’s trainers and students, amongst other things. As for information received by Ms Stockley in response to inquiries she made of officers at ASQA, Mr Malik noted that it was not possible to say precisely what evidence or submissions Star might have been provided without knowing the substance of the information.

     14. Fact 16.

108. The evidence the Commissioner relied upon to show that any breach of procedural fairness was not material because the result would have been the same included Ms Stockley’s account of her contact with ASQA as well as ASQA business records. Those records included emails between ASQA staff (Lea Stevenson and Gayatri Mahes) after the ASQA audit noting that Star had been advised of non-compliances and provided an overview of the next steps during the meeting on 5 August 2021.

109. The Commissioner also relied upon inconsistences between Mr Malik’s affidavit evidence in this court as to what he would have put to SLED on the ASQA issue if afforded the opportunity to do so and what he put in his affidavits filed in the NCAT proceedings on the same question. In those proceedings, he deposed that he would have explained to SLED that the assertion that there were no “material” breaches was not deliberately misleading because ASQA used to distinguish between “critical” and “non-critical” non-compliances. The effect of that distinction is that Star was not being misleading when it asserted it had been informed that there were no “material” non-compliances.

110. In cross-examination Mr Malik accepted that during ASQA’s audit he was informed by ASQA personnel that they had identified things that they considered to be non-compliances, [15] including non-compliance with clauses of the 2015 RTO Standards, [16] . Although he stated at one stage of his evidence that he understood that ASQA had concerns about non-compliance in relation to the first aid course, (which was part of the security licensing course), [17] he also gave evidence that he believed ASQA personnel did not identify particular clauses from the 2015 RTO standards during the closing meeting. [18] He said that he may have been told about concerns relating to the assessment of students as part of the Certificate II in Security Operations, but did not recall. [19] Mr Malik maintained that ASQA informed Star that it is compliant and that ASQA found no material non-compliances in relation to the Certificate II in Security Operations. [20] He maintained that ASQA had not identified any critical non-compliances.

     15. Affidavit, Javaid Malik, 7 December 2021 [51]-[51].

     16. Tcpt, 30 March 2022, p 125(27-34), 137(1-5).

     17. Ibid p 135(44-50).

     18. Ibid p 135(44-50).

     19. Ibid p 141(42)-142(18).

     20. Ibid p 137(34- 46).

111. The Commissioner also relied upon Star’s witness Jeremy McNamara who was present for the ASQA audit. He too gave evidence that during the audit closing meeting ASQA identified that there were non-compliances by Star and that, in his understanding, ASQA identified non-compliance in relation to the security courses. [21] Like Mr Malik, he maintained that these were not considered to be “critical” non-compliances. He confirmed that Star was told during the meeting that it was not compliant in relation to particular clauses of the 2015 RTO Standards. [22] He also gave evidence that during the meeting Ms Stevenson said that ASQA does not “do things that way anymore”, in relation to findings of “critical” non-compliance. He explained that Mr Malik was aware that ASQA was in transition to another process. [23]

     21. Ibid p 144(26-44).

     22. Tcpt, 29 March 2022, p 73(23)-74(11).

     23. Tcpt, 29 March 2022, p 90(23-28), 91(27-36).

Nothing in the historical facts established on the balance of probabilities concerning the course of the proceeding before the Tribunal casts doubt on the reasonableness of the conjecture that the appellant would have taken up the denied opportunity to be heard on that decision-making criterion had it been afforded to him. The reasonable conjecture is that he would have done so at least to the extent of making further submissions directed specifically to the significance of already adduced evidence to the newly introduced decision-making criterion. Quite properly, senior counsel for the Minister conceded as much in the course of oral argument on the appeal.

What is more, there is nothing in the historical facts established on the balance of probabilities, concerning the applicable decision-making criterion or the reasons for the decision which the Tribunal in fact made, that casts doubt on the reasonableness of the conjecture that, had the Tribunal afforded the appellant procedural fairness, the Tribunal may have been influenced by the appellant’s further evidence or submissions to form a different evaluative judgment in respect of the relevant decision-making criterion so as to arrive at a different decision.

With these additional observations, I agree with the reasoning and orders proposed by Kiefel CJ, Keane and Gleeson JJ.”

(Emphasis added.)

169. Consistent with their dissenting judgments in MZAPC, the reasoning of Gordon and Edelman JJ (writing separately) differed to the majority both on the test for materiality and the onus. Gordon J was of the view that the nature of the error in that case was so fundamental that there was no “additional or separate onus” on the appellant to show that the error was material (at [77]), although her Honour acknowledged that not all denials of procedural fairness will be of this nature (relying on MZAPC and SZMTA). Consistently with her Honour’s judgment in MZAPC, Gordon J stated that once an applicant for judicial review has established a procedural unfairness, the onus of establishing immateriality lies with the respondent (at [81]).

170. Edelman J stated (at [90]) that if procedural unfairness is made out, it should only be in an “exceptional case that the decision remains valid”. His Honour went on to refer (at [93]) to the “regrettable premise” in MZAPC that an applicant for judicial review must bear the onus of proving materiality and stated his view of the relevant test for the onus as being that an applicant must do “almost nothing”. His Honour advanced an alternate test at [95], found in favour of Mr Nathanson on that test at [105], and then concluded at [127] that one alternate test would be to treat the onus of proof of materiality, where it arises, as being:

“ … so slight that it can be satisfied by an applicant establishing nothing more than a ‘quadruple might’ at a high level of generality. To reiterate: there might have been things that Mr Nathanson or his wife might have said at the hearing that might have assisted his case in a manner that might have led to a different result.”

(Emphasis in original.)

171. Following the decision in Nathanson the test for materiality remains that expressed by the majority in MZAPC; putting “fundamental” errors to one side, an applicant for judicial review based on a denial of procedural fairness bears the overall onus of proving jurisdictional error by proving on the balance of probabilities all the historical facts necessary to sustain the requisite “reasonable conjecture”, namely, the realistic possibility that a different decision could have been made had there been compliance with that condition.

172. As for the burden imposed by such a test, the majority decision of Nathanson at [32]-[33] (Kiefel CJ, Keane and Gleeson JJ) and [46], [55] (Gageler J) expressed it in terms which, it seems to me, place a less onerous burden on an applicant for judicial review to establish jurisdictional error based on a denial of procedural fairness, a conclusion which I will consider further below.

Consideration

173. The starting point for the consideration of whether Star has established jurisdictional error in this matter is whether it was denied procedural fairness in the first place. Although the Commissioner admitted the underlying facts relied upon to establish such a denial in relation to the ASQA material, she did not accept that Star had been denied procedural fairness on those facts. The Commissioner contended that Star was given an opportunity to be heard in relation to the revocation decision itself and that the revocation decision engaged extensively with the response provided by Star.

174. I am satisfied that Star was denied procedural fairness both in relation to the findings of dishonesty regarding the ASQA material and that they were deliberately unhelpful in their response. I do not accept the Commissioner’s contention to the contrary for the following reasons.

175. First, I do not accept the Commissioner’s submission that the references in the NSC to the potential for a finding of dishonesty in relation to the tampering allegation was sufficient to afford procedural fairness in relation to all of the adverse findings of dishonesty ultimately made.

176. Star was given notice that consideration was being given to revoking its approval pursuant to s 27 of the Act due to “repeated non-compliance” of conditions of approval and concerns about STAR’s ability to comply with those conditions in the future. Particulars of these concerns were set out in the schedule which comprised sections A-G. Schedule A set out the details of the three previous NSCs, section B noted a “lengthy history of warnings, cautions and the issuing of infringement notices to STAR and its Approved Trainers”, section C was entitled, “Failure to implement proposed Reforms/ongoing Breach of Conditions” and included an assertion that STAR’s non-compliance is “serious and systemic” and section D related to concerns in relation to Star’s compliance with condition 7A, imposed in May 2021. Section G is simply a summary of concerns which makes no reference to dishonest, misleading or deceitful conduct by Star. No complaint of any denial of procedural fairness is made in relation to sections A-D or G of the schedule to the NSC.

177. The Commissioner relied upon what was contained in sections E and F of the NSC as affording procedural fairness in this case

178. Section E is headed “Tampering with Student Records”. Star was clearly on notice that there was an allegation of tampering; it was vigorously denied. Relevantly, the NSC included concerns that the submission of copies that differed to the originals “may be evidence of attempt by STAR to mislead and deceive SLED”; that the tampering with original student documents “may be evidence of an attempt by STAR to mislead and deceive SLED”; and that the placing of the ticks “may be evidence that STAR has twice attempted to mislead and deceive SLED in relation to these three students”. I am satisfied that Star was on notice that SLED was concerned that the tampering “may” be evidence of misleading and deceptive conduct.

179. Section F outlined SLED’s concerns about the “methodology used for the preparation of trainer audit reports” and asserted that the submission of student evidence that had not been reviewed by Mr Doslea, yet certified as being compliant was, inter alia, “misleading”. I am satisfied that Star was on notice that SLED was concerned that Mr Doslea’s certification of Mr Yates’ compliance was misleading.

180. The notice of adverse findings on dishonesty in the NSC went no higher than those contained in sections E and F. As against those indicators, the delegate relied upon the ASQA material (which was not referred to in the NSC) to go on to find that Star had engaged in “deception”; that it had “deliberately misled” the Commissioner; and that Star’s responses to the NSC were “deliberately misleading”. She also stated in her reasons that Star’s submissions were “deliberately unhelpful”.

181. Secondly, I do not accept that the fact that Star subsequently received the ASQA audit report directly from ASQA overcomes any failure by SLED to provide it to it. After receiving Star’s response (prepared by its lawyers), Ms Stockley corresponded with ASQA and obtained a copy of their report, which was prepared after the date of Star’s response. When she obtained that information from ASQA, Ms Stockley perceived it to be adverse to Star but did not provide Star with an opportunity to be heard in relation to that perception. It is not to the point to contend, as the Commissioner did, that Star later received a copy of the report so they were not denied procedural fairness; they were not made aware that an adverse finding would be made in relation to something they had asserted in their submissions pertaining to a document that was not in existence at the time of that response.

182. Thirdly, putting to one side for the moment the factual dispute as to whether there was in fact “tampering” with student records, Star was not put on notice that an adverse finding would be made that their response to the NSC was “deliberately unhelpful by seeking to confuse what is meant by the term ‘original documents’.” They were not given an opportunity to be heard on the potential for this adverse finding and could not possibly have known it was going to be made.

183. Fourthly, I do not accept the Commissioner’s contention that Ms Stockley’s finding that Star’s submissions about the ASQA audit were “incorrect and misleading” was such an “obvious and natural evaluation” that there was no requirement to give Star a further opportunity to be heard in relation to it, especially given the disputed evidence about this and that such an evaluation requires potential credit findings.

184. Overall, I do not accept the Commissioner’s contention that there was no denial of procedural fairness. It is apparent on the face of the reasons for the revocation that findings were made in the full knowledge that they concerned a topic not in the NSC (see above at [92]) on which Star had not been invited to respond and which were serious findings of deliberate dishonesty.

185. Before turning to consider the question of materiality, I note that on the question of whether Star had been denied procedural fairness it relied on Ms Stockley’s evidence extracted above at [116] that she did not appear to understand the requirements of procedural fairness. I have considered that submission but do not consider Ms Stockley’s evidence to be relevant to the question of whether, viewed objectively, there was a denial of procedural fairness.

Materiality

186. As for the question of materiality, there was no dispute as to the relevant test, which I have already set out above, based on SZMTA and MZAPC and the more recent decision in Nathanson. The question for the court was whether there was a realistic possibility that the decision-making process could have resulted in a different outcome if Star had been given the opportunity to present evidence or make submissions on the findings that it had deliberately deceived SLED regarding the ASQA audit and had been deliberately unhelpful in its response to the NSC on the workbook tampering issue. This test is one of “reasonable conjecture”.

187. Although the parties provided submissions on the factual findings I would make to determine materiality, both parties accepted that the court should not fall into merits review in doing so. Although the Commissioner contended that I would make a finding that Star had been deliberately dishonest in their response to the NSC, as I have already stated at [184], I do not consider that finding to be as straightforward as the Commissioner contended. For example, Star expressly stated in its response to the NSC that SLED had not made any “direct allegations about Mr Malik or Star in the NSC” of any dishonesty. That was their impression. The findings that could be made on the evidence ranged from a misunderstanding to deliberate dishonesty.

188. Moreover, I have had regard to the principles derived from the decisions of Nathanson, SZMTA and MZAPC. Those decisions all describe the test for materiality as being one of “reasonable conjecture”. In none of those decisions was evidence adduced on behalf of the parties to litigate the question of whether any response provided could have resulted in a different outcome. Having regard to the observations of the four majority judges (Kiefel CJ, Keane, Gleeson JJ and Gageler J) in Nathanson at [33], [39] (Kiefel CJ, Keane and Gleeson JJ) and [46], [47] and [55] (Gageler J), the following principles emerge.

1. There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration: at [33].

2. The standard of “reasonable conjecture” is undemanding: at [33]; and establishing the threshold of materiality is not onerous: at [47].

3. Where a Tribunal errs by denying a party a reasonable opportunity to present their case, “reasonable conjecture” does not require demonstration of how that party might have taken advantage of that lost opportunity: at [33].

4. There is no need for the appellant to establish the nature of any additional evidence or submissions that might have been presented at the Tribunal hearing, had that hearing been procedurally fair; rather the question is one of “reasonable conjecture”: at [39].

5. An applicant for relief is not required to establish any part of what would have occurred on the balance of probabilities had a fair opportunity to be heard been afforded. The onus to establish materiality is no greater than to show that, as a matter of “reasonable conjecture” within the parameters set by the historical facts established on the balance of probabilities, the decision could have been different had a fair opportunity to be heard been afforded: at [46].

6. Where the procedure adopted by an administrator can be shown on the balance of probabilities itself to have failed to afford a fair opportunity to be heard, a denial of procedural fairness will be established by nothing more than that failure: at [55].

7. A denial of procedural fairness will result in a finding of jurisdictional error if the applicant for relief establishes nothing more than the reasonableness, within the parameters set by the historical facts established on the balance of probabilities, of the conjecture that the decision could have been different had a fair opportunity to be heard been afforded: at [55].

8. Unless there is something in the historical facts established on the balance of probabilities upon which to base an inference that the decision could not have been different had a fair opportunity to be heard been afforded, establishing the reasonableness of that conjecture will not be difficult: at [55].

189. Although I do not take the High Court in Nathanson to be stating that an applicant is precluded from adducing evidence as to what he or she would have put before the court in any given case, the question remains as to the extent to which a court is required to resolve the factual disputes which may arise when an applicant who has been deprived of procedural fairness puts evidence before the court of what it would have done, which is disputed, as happened in this case.

190. In the present matter the question of materiality is determinative of jurisdictional error. The Commissioner did not suggest other than that if the court found materiality the plaintiff must succeed. Gageler J recently described the nature of such an error in Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3 at [14] as follows:

“Within a system of government in which power to affect a legal right or interest is limited to that authorised by law, there is utility in having a standardised means of expressing a conclusion that a purported exercise of power pursuant to an authority conferred by law exceeds the limits of that authority. Within our system, a conclusion to that effect has come to be expressed in the terminology of ‘jurisdictional error’.”

191. I cannot accept that the determination in any given case of whether a denial of procedural fairness constitutes jurisdictional error, based on whether or not it was material, should fall to be determined on findings of fact made by the court on the basis of disputed evidence to be resolved by credit findings. On that basis, I am not persuaded that running the counterfactual case the parties invited in this matter is the appropriate course to take, particularly following the decision in Nathanson.

192. Ultimately, I do not consider it necessary to make any findings about the disputed evidence that was adduced in this matter in order to consider whether, as a matter of “reasonable conjecture” within the parameters set by the historical facts established on the balance of probabilities, the decision could have been different had a fair opportunity to be heard been afforded. I will, however, consider the Commissioner’s submissions regarding the significance of the findings of dishonesty made in the context of the decision overall.

193. Nor do I propose to have regard to Ms Stockley’s evidence that she could not say whether her findings would have been different because she did not know what they would have put forward. She agreed that she could not rule out that it would have been different because she did not know what Star would have put forward. I remain unpersuaded that a concession by a decision-maker during evidence in which it is conceded that there was a possibility of a different finding had the process been procedurally fair, could be determinative in circumstances where the test for materiality falls to be determined by the court as a matter of “reasonable conjecture”.

194. I note at the outset that this is not a Hossain-type case where revocation was inevitable, notwithstanding the procedural unfairness, because of other findings made. But the Commissioner’s argument was slightly more nuanced; it was submitted that even if the court was persuaded that there is a realistic possibility that Ms Stockley would have made different findings about whether Star was dishonest regarding the ASQA audit, it would not follow that the same finding applied to the ultimate revocation decision.

195. I have had regard to the fact that Star’s approval was revoked for multiple reasons, not just the dishonesty aspects; so much is clear from the reasons attached to the revocation decision. Nor were the breaches confined to just one area of training delivery. But a finding of dishonesty is a very serious matter and, having regard to the relevant test, cannot be said to be something which could only play a minor role in any decision. A finding that Star had deliberately deceived the regulator was such a significant finding that it had the potential to colour everything else that Star represented to the regulator. In those circumstances, I cannot conclude, as was contended by the Commissioner, that the ASQA material played a comparatively minor role in Ms Stockley’s reasons. Rather, I am satisfied that, as a statement of general application, findings of dishonesty tend to add a different flavour to a basis for revocation than non-compliances alone would.

196. A further difficulty for the Commissioner arises from the fact that the findings in relation to which procedural fairness was denied pertained to dishonesty: it is well established that any allegation of fraud must be specifically pleaded. Leeming JA (with whom Beazley P and Sackville AJA agreed) re-stated the relevant principles in Nadinic v Drinkwater (2017) 94 NSWLR 518; [2017] NSWCA 114 at [45]-[49] noting the reasons why any allegation of fraud must be pleaded specifically and particularised. In Bale & Anor v Mills (2011) 81 NSWLR 498; [2011] NSWCA 226, the court (Allsop P, Giles JA and Tobias AJA) was critical of findings of dishonesty made about a witness who was not afforded an opportunity to explain the dishonesty of which he was accused. Similarly, in Hansen & Anor v Patrick & Ors (2019) 3 Qd R 93; [2018] QCA 298, the primary judge made a finding that the first plaintiff gave false evidence, despite the fact that the allegation had not been raised by the parties or put to Mr Hansen in cross-examination. On appeal, the court held that the rules of procedural fairness dictate that a finding that might impeach a party’s integrity should only be made after giving the party a fair opportunity to respond.

191. Although these cases all pertain to judicial rather than administrative decisions, the principles are clearly the same: no finding of dishonesty should be made without the person whose honesty is being impugned being afforded the opportunity to have the allegation clearly put to them in order to respond to it.

192. It is to be accepted that Star had a history of ongoing non-compliance, and it is conceivable that SLED was experiencing a sense of frustration with it. But that only highlights how SLED’s perception of Star’s dishonesty in its submission may have been the “last straw” for the Regulator given that long history of non-compliance. In that regard, I note that in an exchange with senior counsel for Star during closing submissions so much was acknowledged in the following submission:

“EMMETT:  And your Honour’s right.  If there is a realistic possibility that this finding tipped the balance, in other words, that there was – and I’m just restating the proposition – if that were the case, there would be a realistic possibility of a different outcome.  In that case, we have to accept that the Court would find that it was material.  And as I've acknowledged, it is a low bar for the plaintiff, but there are three matters and it's the cumulative impact of these three matters that are important.”

199. Senior counsel then went on to make the three submissions I have extracted above at [137]-[140] and which I have already addressed.

200. Having regard to the historical facts established on the balance of probabilities, I am satisfied that Star has established, as a matter of reasonable conjecture, that the revocation decision could have been different had a fair opportunity to be heard on the ASQA material been afforded. I cannot accept the submission that these findings of dishonesty were not one of the critical factors on which the revocation decision turned and that there was no realistic possibility of a different decision.

201. In light of the fact that the test is not an onerous one, I am satisfied that SLED’s perception of dishonesty may well have been the “last straw” which tipped the balance, and the result could have been different had procedural unfairness not been denied. I have applied that test of reasonable conjecture to an impartial decision maker, as I am required to.

Conclusion

202. I am satisfied that SLED fell into jurisdictional error in failing to afford procedural fairness to Star in this matter.

203. Given this finding, I do not consider it necessary to consider the validity of the conditions imposed by Star nor the various other bases upon which Star relied to establish error in this matter. As stated above at [37], the parties accepted the merit in such an approach.

204. No submissions were made to suggest that I would depart from the usual rule that costs follow the event.

ORDERS

205. Accordingly, I make the following orders

1. The decision of the Security Licensing and Enforcement Directorate dated 10 September 2021 is quashed.

2. The defendant is to pay the plaintiff’s costs on the ordinary basis.

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Endnotes

Decision last updated: 28 February 2023