Statepatrol Australia Pty Ltd v Training and Skills Commission

[2010] SADC 66

DISTRICT COURT OF SOUTH AUSTRALIA

(District Court Administrative and Disciplinary Division)

In the Matter of TRAINING SKILLS AND DEVELOPMENT ACT 2008

STATEPATROL AUSTRALIA PTY LTD v TRAINING AND SKILLS COMMISSION

[2010] SADC 66

Judgment of Her Honour Judge Cole

20 May 2010

ADMINISTRATIVE LAW

Appeal from the refusal of an application to be registered as a training provider pursuant to the Training Skills and Development Act 2008 - prior criminal history of appellant considered - prior bankruptcy of appellant considered - whether appellant is a fit and proper person to be a registered training provider - Respondents determination affirmed - Appeal dismissed.

District Court Act 1991; Training Skills and Development Act 2008, referred to.
Sobey v Commercial Agents Board (1979) 22 SASR 70, considered.

STATEPATROL AUSTRALIA PTY LTD v TRAINING AND SKILLS COMMISSION
[2010] SADC 66

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

1. Statepatrol Australia Pty Ltd (“Statepatrol”) has appealed against the decision of the Training and Skills Commission (“the Commission”), by its delegate, Mr Garrand, to refuse Statepatrol’s application pursuant to s.26 of the Training Skills and Development Act 2008 (“the Act”) to be registered as a training provider.

2. At the hearing of the matter, Statepatrol was represented by Mr Bobak, its sole director.  Mr Pritchard, an accountant, Mr Worso, an employment placement coach, Mr Smith, a trainer, and Mr Bobak, gave evidence in Statepatrol’s case.  Mr Swanson appeared as counsel for the respondent.  Ms Cottington and Mr Lomman, both of whom are senior project officers, gave evidence in the respondent’s case.

   The Act

3. The Act provides for a system of registration of training providers (among other things).  The Act provides, in s.26:-

   26    Registration of training providers

   (1)The Commission may, on application or of its own motion, register, or renew the registration of, a person as a training provider –

   (a)     to-

   (i)deliver education and training and provide assessment services; and

   (ii)issue qualifications and statements of attainment under the AQF,

   in relation to higher education or vocational education and training (or both);

   or

   (b)     to-

   (i)provide assessment services; and

   (ii)issue qualifications and statements of attainment under the AQF,

   in relation to higher education or vocational education (or both);

   or

   (c)     for the delivery of education services for overseas students.

   (2)An application for registration or renewal of registration must –

   (a)be made to the Commission in the manner and form approved by the Commission; and

   (b)be accompanied by a fee fixed by regulation.

   (3)An applicant must provide the Commission with any information required by the Commission for the purposes of determining the application.

4. AQF is defined in s.4 of the Act as follows:

   AQF means the policy framework entitled “Australian Qualifications Framework” that defines qualifications recognised nationally in post-compulsory education within Australia, as approved by the Ministerial Council on Education, Employment, Training and Youth Affairs from time to time.

5. The Act provides, in s.29 (relevantly):

   29 – Criteria for registration

   (1)     The Commission must, in determining whether to register, or renew or vary the registration of, a training provider, and in determining conditions of registration –

   (a)apply –

   (i)the standards for registered training providers; and

   (ii)the guidelines (if any) developed by the Commission and approved by the Minister; and

   (b)have regard to the standards for State and Territory registering/course accrediting bodies.

   (2)     The Commission may not register, renew or vary the registration of a person under this section unless the Commissioner is satisfied that the person is fit and proper to be so registered, or to have the registration so renewed or varied, taking into account –

   (a)the prior conduct of the person or an associate of the person (whether in this State or elsewhere); and

   (b)any other matter that the Commission considers relevant.

   (3)     The Commission may not register, renew or vary the registration of, a training provider that is registered as the result of a determination by some other registering body unless the Commission determines (according to such criteria as the Commission thinks fit) that this State will be the provider’s principle place of business as a training provider.

   (4)     In this section, a person is an associate of another person if –

   (a)they are partners; or

   (b)they are both trustees of beneficiaries of the same trust, or 1 is a trustee and the other is a beneficiary of the same trust; or

   (c)1 is a body corporate and the other is a director or a member of the governing body of the body corporate; or

   (d)1 is a body corporate and the other is a person who has a legal or equitable interest in 5% or more of the share capital of the body corporate; or

   (e)1 is an employer or employee of the other; or

   (f)1 is the spouse, domestic partner, parent or child of the other; or

   (g)a chain of relationships can be traced between them under any 1 or more of the preceding paragraphs.

6. The Act provides, in s.42, that an appeal to this Court may be made against a decision of the Commission refusing an application for the grant of a registration.

7. The Act provides, in s.43(3) and (4):

   (3)     A person must not claim or purport to be a registered training provider in relation to vocational education and training unless the person is registered as a training provider in relation to vocational education and training.

   Maximum penalty $5 000

   (4)     A person must not issue, or claim or purport to issue, qualifications or statements of attainment under the AQF in relation to vocational education and training unless the person is –

   (a)registered as a training provider in relation to vocational education and training; and

   (b)operating within the scope of the registration of the provider; and

   (c)complying with any other conditions of the registration.

   Maximum penalty $5 000

8. Statepatrol’s appeal is an appeal under the District Court Act 1991, Part 6 Division 2. The District Court Act 1991 provides, in s.42E and s.42F:-

   42E-Conduct of appeal

   (1)     The Court must, on an appeal, examine the decision of the original decision-maker on the evidence or material before the original decision-maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it.

   (2)     The Court, on an appeal –

   (a)is not bound by the rules of evidence but may inform itself as it thinks fit; and

   (b)must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.

   (3)     The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.

   42F-Decision on appeal

   (1)     The Court may, on an appeal –

   (a)affirm the decision appealed against;

   (b)rescind the decision and substitute a decision that the Court considers appropriate;

   (c)remit matters to the original decision-maker for consideration or further consideration in accordance with any directions or recommendations of the Court.

9. The relationship between the system for the regulation of training providers in this State with the national system is relevant in this matter.  This relationship was explained succinctly in the respondent’s summary of argument:

   1.    “Vocational education and training” (VET) refers to all post secondary education other than higher education.  It is regulated by the Training and Skills Development Act 2008 (SA) (TSD 2008) and corresponding legislation in other States and Territories, together forming a national scheme known as the Australian Quality Training Framework (AQTF).  In SA TSD 2008 is administered by the Department of Further Education, Employment, Science and Technology (DFEEST).

   2     Training providers which are registered by a State/Territory registering body (in SA the Training and Skills Commission registers training providers under s.26 of TSD 2008) are commonly referred to as registered training organisations (RTOs).  Registration is for up to 5 years: s.34(1).  An RTO may be public (eg TAFE) or private.  RTOs must adhere to nationally agreed standards and they award qualifications according to a nationally agreed framework, the Australian Qualifications Framework (AQF).  Qualifications in the AQF are comprised of units of competency.  An RTO is registered to delivery particular units of competency.  These units, together with any other conditions applying to registration, form part of the “scope of registration” of the RTO: s.27(1)(a) of TSD 2008.  However, once registered, an RTO may apply to extend the scope of its registration.  RTOs are recorded on a register linked to the National Training Information Service (NTIS).

   3.    RTOs (wherever registered) can operate within the scope of their registration anywhere in Australia.  Qualifications awarded by RTOs are nationally recognised (including by other RTOs).  This mutual recognition arises from TSD 2008 and the corresponding legislation in all other States and Territories.  The Mutual Recognition Act 1992 (Cth) does not apply to RTOs.

   4.    RTOs who deliver training to apprentices and trainees are eligible for State government funding.  RTOs may also be granted government funding under specific training programs.

   5.    It is not compulsory for training providers to be registered.  But it is an offence for a person to hold themselves out as an RTO if not registered or to issue or purport to issue qualifications under the AQF: s.43(3) and (4) of TSD 2008.

   6.    In determining whether to register a training provider the Training and Skills Commission (TSC) or delegate must –

   §apply the national standards (AQTF 2007) and SA guidelines for RTOs

   §have regard to the national standards for registering bodies

   §be satisfied that the applicant is fit and proper to be registered

   §determine that SA will be the provider’s principal place of business

   (s.29 of TSD 2008)

   7.    In determining whether an applicant is fit and proper to be registered, regard may be had to the prior conduct of an “associate” of the applicant: s.29(2)(a) of TSD 2008.  As the sole director and shareholder of Statepatrol Australia Pty Ltd, Terry Bobak is an associate of the company: s.29(4)(c) and (d).

   Standards and Qualifications

   8.    The AQTF 207 Essential Standards for Registration include quality training and assessment, access and equity for clients, responsive management, sound financial management and accuracy and integrity in marketing.

   9.    SA’s Guidelines for RTOs require RTOs to give clients clear information about fees, to have a documented system to safeguard fees paid in advance, to have a documented and fair refund policy, to maintain student records, and to make certain reports to DFEEST.

   10.    RTOs are subject to periodic audit by DFEEST.  Overall RTOs occupy a highly responsible position in the VET sector.

   The Application

10. Statepatrol lodged an application to be registered as a training provider pursuant to s.26 of the Act on 8 October 2008.  This was Statepatrol’s second application.  The first application was made in January 2007, and was refused.  The application dated 8 October 2008 had the following features, among others:

    1.     In the application, the name of the Chief Executive Officer of Statepatrol was given as Terry Pater (sic – a typing error, and intended to be Peter) Bobak.

    2.     Alongside “provider type”, the words “Traffic Controller Training Instructor (For persons controlling traffic on Roads or Pedestrian impediment on or near roads or associated works)” were entered.

    3.     The question “Has your organisation or an associate of the organisation previously been an RTO?” was answered “Yes”.  The “Legal name of RTO” was given as “Terry Bobak”, and the “State/Territory of registration” was given as Queensland & New South Wales.  The dates of registration were given as 2/7/1997 to 30/6/2020.

    4.     The question “Has the person or body (refer to legal entity named above or an associate of the person or body) ever been convicted of an indictable offence?” was answered “Yes”.

    5.     The question “Has the person or body (refer to legal entity named above or an associate of the person or body) ever become bankrupt or taken the benefit of any law for the relief of bankrupt debtors, or compounded with their creditors, or made assignment of their property for their benefit?” was answered “Yes”.

    6.     It was stated in the application that Statepatrol did not intend to provide qualifications to overseas students, or to offer any qualifications outside Australia.  Qualifications were to be offered interstate.

    7.     It was stated in the application that the training was intended to qualify students for a “Traffic Controller” licence.

    8.     The question “Are training and assessment services your organisation’s primary business activity?” was answered “Yes”.

    9.     The question “Does your organisation intend to provide training to clients under the age of 18 years?” was answered “No”.

    10.    The application said that Statepatrol intended to offer these “qualifications/courses”:

    OH&S Pol [sic]& Procedure
    Control Traffic with stop/slow bate [sic]
    Implement Traffic Management Plan

11. Where the term “RTO” is used, it stands for “registered training organisation”, which is not a term used in the Act, but seems to be a term used in the industry to refer to a registered training provider.

12. A National Police Certificate was provided with the application, as required.  The National Police Certificate relates to Terence Peter Bobak, and reads, in part:

    The following disclosable court outcomes are recorded by Australian Police Jurisdictions against a person with the above details:

COURT	DATE	OFFENCE	OUTCOME	RESULT
QLD
Beenleigh MC	12/6/91	Imposition	Convicted	BOND $100 to be of good behaviour for 6 months
Maroochydore DC	27/7/00	Dangerous operation of vehicle Deprivation of liberty	Convicted Convicted	9 months imprisonment 3 months imprisonment Head sentence 9 months imprisonment suspended on BOND to be of good behaviour for 2 years Drivers licence disqualification for 18 months
Southport DC	8/6/01	Indecent dealing with a child under the age of 16 years Rape	Convicted Convicted	9 months imprisonment 3 years imprisonment concurrent
Southport DC	12/4/02	Indecent treatment of children under 16 with circumstances of aggravation (2)	Convicted	6 months imprisonment
Southport DC	12/4/02	Deprivations of liberty – unlawfully detain/confine	Convicted	12 months imprisonment
Southport DC	12/4/02	Carnal knowledge of girls under 16 years with circumstances of aggravation Indecent treatment of children under 16 with circumstances of aggravation Indecent treatment of children under 16 with circumstances of aggravation	Convicted Convicted Convicted	6 months imprisonment 6 months imprisonment Head sentence 12 months imprisonment concurrent with conditions
Court of Appeal Queensland	23/6/02	Appeal re 12/4/02 (Carnal knowledge of girls under 16 years with circumstances of aggravation)	Appeal allowed Outcome varied	2 years imprisonment cumulative

1. Mr Bobak is clearly an associate of Statepatrol within the meaning of s.29(4) of the Act.  Mr Bobak’s prior conduct is therefore relevant to the question of whether Statepatrol is fit and proper to be registered as a training provider.

2. A written submission of Mr A M Gallacher, the SA/NT Branch Secretary of the Transport Workers Union of Australia (“the TWU”), dated 2 October 2008, was submitted with the application.  That submission says, in part:

   Prior convictions are considered if relevant to the scope and operations of the RTO.  The prior convictions of Mr Bobak are not relevant to the scope of the RTO or its operations. 

   The convictions occurred during court processes in 2001-2002.  Mr Bobak maintains his innocence of those charges, but accepts that he was found guilty by a jury and that he thus has a conviction recorded against him.

   Those convictions are not related to offences of dishonesty, consumer law or corporations law.  The convictions are entirely unrelated to the provision of Traffic Controller training as an RTO.  In addition, the convictions occurred a substantial number of years ago, and Mr Bobak has served the penalties associated with the convictions, and has no ongoing reporting requirements.

   …

   Mr Bobak’s convictions occurred nearly ten years ago and he is attempting to rebuild his life after serving the penalties mandated.  The convictions were not of a kind that is directly related to the provision of training in the transport industry.  Mr Bobak should be able to move on from his past and become a productive member of the community as he was before the convictions occurred.

   …

   Bankruptcy

   The previous bankruptcy of Mr Bobak was a direct result of a series of traumatic events in Mr Bobak’s life, and should be considered with all the surrounding circumstances.

   Mr Bobak was severely injured whilst volunteering as a fireman for the QLD Rural Fire Service.  This had a severe impact on Mr Bobak’s physical and mental health at the time, as well as an effect on Mr Bobak’s ability to operate his business profitably.  Administrators were initially appointed, and a Sequestration Order was made against Mr Bobak on 23 October 1998.  Throughout this time, Mr Bobak’s judgement was impaired due to his physical and psychological injuries arising out of the accident.  The bankruptcy was a voluntary measure following the advice of his solicitors, and due to his Post Traumatic Stress Disorder, Mr Bobak was heavily reliant on his solicitors at this time.

   After this had occurred, Mr Bobak was sentenced to and served a 5 year prison sentence.  During this time there would have been no useful purpose in discharging the bankruptcy, and whilst in prison Mr Bobak was obviously more concerned with trying to survive each day in a prison environment.

   Upon his release, Mr Bobak was unaware he was still bankrupt, and as soon as he became aware, he contacted his Trustee immediately and was told his file would be retrieved from the archives and that he would be contacted.

   He was not subsequently contacted and therefore assumed the situation had been properly resolved.  He then attempted to move on with his life and provide a living for his family.  He did this by incorporating Statepatrol Australia Pty Ltd on 19 July 2006.  This was a slightly premature action to take; however on 7 August 2006 he was formally informed his bankruptcy was discharged.  In practical terms there was a very small overlap in time, and the end result demonstrates that the action was not unjustified.

   Mr Bobak did not at any time attempt to circumnavigate [sic] the proper ASIC procedures and relevant rules regarding undischarged bankrupts being appointed as company directors.  His actions were a genuine mistake and oversight owing to the fact that he thought his bankruptcy had been discharged.

   …

   Mr Bobak has recently been granted accreditation in QLD as a Traffic Controller trainer in accordance with the Transport Operations (Road Use Management)- Accreditations and other provisions Regulations 2005. [sic]

   Statepatrol Australia has one trainer in QLD successfully conducting these training courses in accordance with the QLD regulations.  This is the same training that Mr Bobak wishes to conduct in South Australia and across the rest of the country.  The type of training currently happening in QLD would be the same as would occur in other states.

   There is provision for the QLD accreditation to be mutually recognised in other states, however this exercise is costly and cumbersome.  Becoming registered as an RTO would simply allow the training that is being conducted in QLD at the moment to be conducted elsewhere.

   It is a very strong indication that the registration should be granted if the accrediting authority in one state has granted the accreditation using similar criteria.

   …

1. A folder containing many documents of various kinds was submitted with the application.  One of the documents is an “endorsement” of Mr Bobak as a qualified trainer in respect of “Work Site Traffic Control”, from RTA Technology, and dated 3 July 1997.  There are also more recent qualifications, including a certificate from the Department of Main Roads, Queensland, dated 30 July 2008, certifying that Mr Bobak is an “approved traffic controller training provider” under the Queensland Transport Traffic Controller Accreditation Scheme.  Neither the endorsement nor the approval as a “traffic controller training provider” amounts to registration as registered training provider under the Act, or its Queensland equivalent.

   The Processing of the Application

2. Enquiries were made concerning Statepatrol’s application by officers of the Department of Further Education, Employment, Science and Technology.  A considerable volume of correspondence was exchanged between those officers and Mr Bobak.  A considerable amount of information was collected by the Departmental officers from a number of sources.

3. On 10 July 2009, Mr Garrrand, the delegate of the Commission, wrote to Statepatrol.  In his letter, Mr Garrand set out some of the information gathered by the Departmental officers, together with his analysis of that information.  Mr Garrand said, in his letter, that, on that basis of the material available to him, he was disposed to refuse the application on six grounds, which he specified:

   (a)    the serious, recurrent and recent offending by Mr Bobak, the company’s principal;

   (b)    the lengthy and only recently discharged bankruptcy of Mr Bobak;

   (c)    Mr Bobak’s appointment as a director whilst an undischarged bankrupt;

   (d)    the absence of any satisfactory explanation about the directorship of Leslie Cole;

   (e)    the company’s failure to register the business name that it uses; and

   (f)     inappropriate and inaccurate marketing of Statepatrol in relation to its authority to conduct training approved by the NSW Road Traffic Authority.

   
   
   

4. Mr Garrand said, in his letter, that Mr Bobak was plainly an associate of Statepatrol pursuant to s.29(4) of the Act (quoted above), and it was therefore relevant to have regard to his conduct when considering whether Statepatrol was fit and proper to be registered as a training provider.  Ground (a) relates to the offences set out on the National Police Certificate, quoted above.  Mr Garrand said, in his letter:

   The offences included rape, deprivation of liberty and several sex offences against children.  It is of significant concern to me that a person who has recent convictions for serious offences against the person would be the principal training instructor in a registered organisation.  Mr Bobak’s police record and the remarks of Justice Holmes in the Supreme Court of Queensland on 23 August 2002 in the appeal against sentence of Mr Bobak indicate a course of serious criminal conduct on Mr Bobak’s part.

5. The judgement of Justice Holmes was the lead judgment in a decision of the full court of the Supreme Court of Queensland on 23 August 2002, on appeal from the District Court (Qld) in relation to the sentencing of Mr Bobak in respect of one count of carnal knowledge with a circumstance of aggravation, six counts of indecent dealing and one count of deprivation of liberty.  The sentence imposed by the District Court was increased, with some emphasis being laid upon the relationship of trust between Mr Bobak and the victims, two of whom were 15 years old at the time of the offences, and one of whom was 14 years old.  The facts of the matters were also set out in some detail, showing a course of conduct over a number of incidents from December 1995 to April 1998.

6. Ground (b) relates to Mr Bobak’s bankruptcy, which endured from 23 October 1998 to 7 August 2006.

7. Ground (c) relates to the fact that Mr Bobak was a director of Statepatrol from 19 July 2006 until 7 August 2006 whilst he was an undischarged bankrupt.  This is a breach of s.201B of the Corporations Act 2001 (Commonwealth).

8. Ground (d) relates to the period from 1 October 2006 to about 13 February 2007, when Mr Leslie Cole was the sole director of Statepatrol.  During that period, in January 2007, Statepatrol’s first application for registration as a registered training organisation was made.  That application was refused.  Oddly, and erroneously, Mr Bobak’s solicitors, Stokes Legal, in a letter dated 21 March 2007 said “It does not appear that Mr Cole was ever a Director of the company”.  The TWU, on Mr Bobak’s behalf, in a letter dated 31 July 2009, said:

   “The directorship of Leslie Cole has also been addressed on several occasions.  It was a temporary measure put in place whilst Mr Bobak’s bankruptcy was being discharged.  It was an attempt by Mr Bobak to do the correct thing whilst the bankruptcy was being addressed.”

9. That explanation is simply untrue, on the material before me.  Mr Bobak was discharged from bankruptcy on 7 August 2006, and Mr Cole did not become a director of Statepatrol until 1 October 2006.

10. Ground (e) relates to the alleged failure of Statepatrol to register the business names it uses, which are “State Patrol” and “State Patrol Australia”.  The answer to this, in the TWU letter of 31 July 2009 was:

    There are no trading names registered as Statepatrol Australia does not have a different trading name.

11. In fact, it is clear from the material before me that State Patrol and State Patrol Australia are used in correspondence, advertisements and on Statepatrol’s website. As Mr Garrand pointed out in his letter of 14 September 2009, this contravenes s.7 of the Business Names Act 1996.

12. Ground (f) relates to information provided to the delegate by the NSW Road Transport Authority in the course of the processing of the application.  Mr Bobak had claimed, in the application by Statepatrol which is the subject of this appeal, that he, personally, was a registered training organisation registered in Queensland and New South Wales from 2 July 1997 to 30 June 2020.  Subsequently, in a letter dated 30 November 2008, Mr Bobak admitted that this claim was an error.  Mr Bobak said that he had been referring to his training provider accreditation.  An officer of the SA Department sought further information from the Queensland Department of Main Roads and the NSW Road Transport Authority.  The Queensland Department of Main Roads responded by letter of 27 April 2009, saying that Mr Bobak has accreditation with the Department of Main Roads to deliver traffic control training, and that the accreditation is due to expire on 30 June 2010.  An officer of the NSW Road Transport Authority reported by email on 29 April 2009 that Mr Bobak was not presently an approved trainer.  In addition, the email said:

    State Patrol Australia currently advertise by brochure and website that they are “Road and Traffic Authority New South Wales ACCREDITED” to provide traffic control training.  This is not the case and this issue has been forwarded to the RTA legal section to be addressed.

13. It appears from material on the Departmental file that Statepatrol ceased making that representation when approached about it by the NSW Road Transport Authority.  It seems that Mr Bobak may have been an accredited trainer in NSW in the 1990s, but his accreditation had long since expired.  Such accreditation is not equivalent to being registered as a registered training provider, or RTO.  Mr Bobak’s Queensland accreditation as a traffic controller training provider, similarly, is not equivalent to registration as a registered training provider.

14. Statepatrol was given the opportunity to respond to Mr Garrand’s letter prior to a final decision being made.  Clare Davidson, the legal officer of the TWU SA/NT branch, responded in writing on behalf of Statepatrol by letter dated 31 July 2009, and received by the Department on 4 August 2009.

    The Delegate’s Decision

15. Mr Garrand communicated his final decision to refuse the application for registration to Statepatrol by letter of 14 September 2009.  That letter said, in part:

    In my letter of 10 July 2009 I advised you that I was disposed to refuse the application for registration and indicated the reasons for this.  I indicated that before making a final decision in the matter I would give the company an opportunity to respond to the contents of the letter.

    On 4 August 2009 I received a response from the Transport Workers Union on behalf of Mr Terry Bobak as director of Statepatrol Australia Pty Ltd.  I have taken into account the contents of that response and all previous representations made on behalf of Statepatrol Australia Pty Ltd and Mr Bobak.

    …

    The concerns I outlined in my letter of 10 July 2009 remain.  In relation to these matters I regard Mr Bobak’s criminal record to be of most concern.

    …

    Mr Bobak’s offences were serious and involved a breach of trust with children in his care….The Court of Appeal took into account all Mr Bobak’s personal circumstances as well as the circumstances of the offending. 

    I regard these matters to be relevant to a decision about whether an applicant is a fit and proper person.  Registration of a training provider under the Act must afford the community a high level of confidence in their dealings with the provider.  Registered training providers are entitled to deliver training to persons of any age, including those under the age of 18 years.  This is of particular concern in view of Mr Bobak’s history.  I do not consider that the risk of harm to young persons which that history presents could be effectively managed by placing conditions on the registration of Statepatrol Australia Pty Ltd.

    The other concerns I raised in my correspondence of 10 July 2009, including Mr Bobak’s period of bankruptcy, the lack of clear information surrounding the incorporation of Statepatrol Australia Pty Ltd and the role of Leslie Cole as a director of the company, may individually not be an impediment to registration.  However, collectively, they present a pattern of behaviour that does not give me confidence that the company will be managed in accordance with regulatory requirements.

    As stated in my previous correspondence of 10 July 2009, Mr Bobak is an associate (as defined under the Training and Skills Development Act 2008) of the applicant Statepatrol Australia Pty Ltd.  In considering an application for registration I must be satisfied that the person is fit and proper taking into account the prior conduct of the person or an associate of the person.

    I have determined that the Statepatrol Australia Pty Ltd is not fit and proper to be registered as a training provider under the Training and Skills Development Act 2008.  I have made this determination on the basis of the evidence of the prior conduct of Mr Terry Bobak and the fact that Mr Bobak controls Statepatrol Australia Pty Ltd (as its sole director) and is the company’s key staff member.

    I therefore inform you that I have refused the application for initial registration from Statepatrol Australia Pty Ltd.

    Statepatrol’s Appeal

16. At the hearing of the appeal, Mr Bobak conducted Statepatrol’s case.  Mr Shane Pritchard, and accountant, Mr Worso, an employment placement coach and Mr Michael Smith, a contract trainer from Queensland, gave evidence in Statepatrol’s case.  Mr Bobak also gave evidence.

17. It became evident during Statepatrol’s case that Statepatrol has for some time been carrying on business in South Australia and Queensland.  It seems that Statepatrol promotes courses in worksite safety and in traffic management.  Satisfactory completion of a worksite safety course is a prerequisite to attaining a “white card”, which enables the holder to gain access to certain kinds of work sites.  The promoted courses are then conducted, and Statepatrol provides documentation to either Western Pacific Training Consultants Pty Ltd, Namtech Inc or ATC Training Services Pty Ltd.  Presumably those companies are registered training providers.  In the case of a worksite safety course, the registered training provider then provides to the trainee, upon satisfactory completion of the course, the certificate which is required by the authority as a pre-requisite to the issue of a white card to the trainee. 

18. Mr Smith gave evidence that he had, through his own company, ITNRG Pty Ltd, conducted courses for Statepatrol in Queensland, using Namtech’s paperwork.  The role of Statepatrol in those courses seems to have been to promote them and to operate as a post box and a storage facility for documentation. 

19. Mr Worso refers unemployed clients to Statepatrol courses.  Mr Worso assumed that Statepatrol was the registered training provider in relation to those courses, though his understanding of the statutory training system was slight.

20. Statepatrol’s notice of appeal sets out the following grounds of appeal:

    1.    There are cogent reasons for departing from the decision of the Delegate, in that the delegate erred in determining that the Appellant was not fit and proper to be registered as a training provider under the Training and Skills Development Act 2008 (2008) and thereby refusing the Appellant’s application for Registration as a training provider.

    Particulars

    a.The delegate erred in his classification of Mr Bobak’s offences as being “recent”.

    b.The delegate erred in failing to consider that all participants of the training courses that are subject to the Appellant’s Application for Registration are required to be at least 18 years of age.

    c.The delegate failed to consider properly or, alternatively, attach sufficient weight to, the consideration that registration of the Appellant may be subject to conditions under the Training Skills and Development Act 2008 (SA).

    d.The delegate attached excessive weight to the consideration of the prior convictions of the Director of the Appellant.  The delegate attached excessive weight to the consideration that (sic) the nature and length of the Bankruptcy of the Director of the Appellant.  The delegate failed to consider properly or, alternatively, attach sufficient weight to, the written correspondence between the Appellant and the Road Transport Authority (RTA) or New South Wales in relation to the Appellants use of the RTA’s name or logo.

    e.The delegate attached excessive weight to the consideration that the incorporation of the Appellant and the circumstances surrounding the appointment of the Appellant’s previous Directors.

    f.The Delegate failed to consider properly or, alternatively, attach sufficient weight to, the consideration that the operations of the Appellant over the previous three years in considering the governance and financial transparency of the Appellant.

    g.The Delegate failed to consider properly or, alternatively, attach sufficient weight to, the consideration that the Director of the Appellant had been and currently is registered for a similar statutory scheme by Queensland Transport, and his subsequent work record under this registration.

    2.    There are cogent reasons for departing from the decision of the Delegate, in that the Delegate failed to afford procedural fairness to the Appellant in that he failed to:

    a.identify to the Appellant the other, specifically educational matters which in the delegate’s opinion would require attention before the application for registration could be approved; and

    b.provide an opportunity to the Appellant to rebut or qualify by further information, and comment by way of submission, upon those matters.

    3.    There are cogent reasons for departing from the decision of the Delegate, in that the Delegate failed to afford procedure fairness to the Appellant in that he failed to:

    a.identify how the Appellant was said to be using alternate business names; and

    b.provide an opportunity to the Appellant to rebut or qualify by further information, and comment by way of submission, upon this issue.

    4.    There are cogent reasons for departing from the decision of the Delegate, in that, on the whole of the evidence before the Court, the Appellant was fit and proper to be registered as a training provider under the Training and Skills Development Act 2008 (SA).

21. For convenience, I will deal with the grounds of appeal out of order.  I reject ground 2.  It is misconceived.  Mr Garrand rejected the application for registration on the grounds stated in the letter quoted above, before getting to the stage of assessing the capacity of Statepatrol to deliver the training specified in the application from an educational point of view.  The rejection of the application on other grounds made the assessment of capacity from an educational point of view unnecessary, and no issue of procedural fairness arises.

22. Ground 3 relates to the allegation that Statepatrol uses the business names “State Patrol” and “State Patrol Australia” without those names being registered under the Business Names Act 1996. The name of the applicant is Statepatrol Australia Pty Ltd. The letterhead for all of the letters written by Mr Bobak in relation to the application are headed State Patrol in large lettering, with Australia Pty Ltd under it in smaller lettering. The website is headed in a similar way. The company is referred to in various ways on its website and in its advertisements, including as State Patrol. The “Statement of Attainment” issued by the applicant to trainees bears the applicant’s badge shaped logo with “State Patrol traffic control” written within it, and no other description of the company. Plainly, the applicant uses a range of variations of its name. As set out above, Statepatrol was given several opportunities to respond to Mr Garrand’s concerns about this and other matters. It is clear that the business names used by Statepatrol have not been registered under the Business Names Act 1996. I reject ground 3 of the grounds of appeal.

23. Ground 1 complained, on a number of bases, of the delegate’s finding that Statepatrol was not a fit and proper person to be registered as a registered training provider.  The question of what it means to be “a fit and proper person” was considered by the Supreme Court in Sobey v Commercial Agents Board (1979) 22 SASR 70, and Walters J said, at p76:

    The issue whether an appellant has shown himself to be “a fit and proper person” within the meaning of s.16(1) of the Act, is not capable of being stated with any degree of precision.  But for the purposes of the case under appeal, I think all I need to say is that, in my opinion, what is meant by that expression is that an applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of the particular licence under the Act, but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails.

24. Registration as a training provider under the existing national scheme of which the Act is a part implies a great deal more to the public than competence as a trainer in the relevant “units of competency.”  It implies that the provider is an organisation to which the training of trainees may safely and confidently be entrusted.  It implies that the provider is fit to exercise a degree of authority in relation to trainees.  It implies that fees for courses may safely be paid in advance to the provider.  It is in this context that the Commission (or its delegate) must be satisfied that the applicant for registration is fit and proper to be registered.

25. In ground 1.a it is complained that Mr Garrand erred in classifying Mr Bobak’s offences as “recent”.  Having regard to the nature of the offences and in all of the circumstances, it seems to me that the offences are sufficiently recent to be relevant to the consideration of Statepatrol’s application.

1. It was further complained in the notice of appeal that the delegate had attached excessive weight to the convictions of Mr Bobak.  In his submissions, Mr Swanson pointed to the fact that the offences involved young and vulnerable victims who were in Mr Bobak’s care at the time of the offending.  He noted that the offending was not isolated, but represented a course of conduct over some years.  It is relevant that Mr Bobak, despite having been convicted, and having served a sentence of imprisonment in relation to the offences, maintains his innocence of the most serious offences.  In relation to Mr Bobak’s rehabilitation, I have had regard to the Sentence Management Review Report and the other reports tendered by Mr Bobak in exhibit A5 and A1.  They are not unequivocally encouraging.  Mr Bobak tendered the transcript of the sentencing remarks of Judge Newton in the District Court of Queensland on 12 April 2002 and Judge Newton said:

   In the circumstances, I propose to make the declaration sought by the Crown under the 1945 Criminal Law Amendment Act on the basis that I am satisfied that there is a substantial risk that the offender will hereafter commit a further offence of a sexual nature upon or in relation to a child under the age of 16 years.

2. I reach that view not solely upon the basis of the medical reports, but also on the basis that perhaps the best guide to future behaviour is to be derived from past behaviour and, in my view, it would be wrong to overlook the fact that there have been four different young girls interfered with by Mr Bobak over some two years.

3. Mr Swanson said, in his submissions before me:

   ...the grant of registration to an RTO involves a holding out by the registering body that the RTO is not only competent in delivering nationally recognised training but will adhere to high ethical standards in its dealings with clients (students and employers) and the public.  RTOs (which must recognise the training delivered by another RTO if enrolling their students) must have full confidence in each other.  Students and employers sometimes pay significant fees in advance for courses.  In all these respects, the grant of a registration to an RTO is more akin to the admission of a person to a profession that the grant of an occupational licence.  Law Society of South Australia v Rodda (2002) 83 SASR 541; Sobey v Commercial Agents Board (1979) 22 SASR 70.

   The test must be: in the absence of compelling evidence of rehabilitation, would the public have confidence in an RTO whose alter ego has been convicted of a number of serious offences against young persons?

4. Mr Bobak submitted material relating to the prevention of discrimination in employment on the basis of a criminal record.  That material is not directly relevant to the question of whether Statepatrol is a fit and proper person to be registered as a training provider.  I have considered, however, Mr Bobak’s concern that he not be punished repeatedly for offences for which he has served a term of imprisonment.  I find, on the basis of the material before me, that in determining the application for registration, Mr Garrand properly confined himself to the consideration of the criteria in s.29(2), and had regard to Mr Bobak’s conduct only as it relates to the question of whether Statepatrol is fit and proper to be registered.  I agree with Mr Swanson that it is relevant to ask whether the public could have confidence in a registered training provider whose alter ego has been convicted of the offences for which Mr Bobak has been convicted.  I conclude that the public could not have that confidence.

5. Also under ground 1.b and c the appellant complained that the delegate failed to have sufficient regard to the ability to impose conditions upon the registration of a registered training provider.  The power to impose conditions upon the registration of a training provider is conferred by s.27 of the Act.  In his letter of 14 September 2009, Mr Garrand said:

   Registration of a training provider under the Act must afford the community a high level of confidence in their dealings with the provider.  Registered training providers are entitled to deliver training to persons of any age, including those under the age of 18 years.  This is of particular concern in view of Mr Bobak’s history.  I do not consider that the risk of harm to young persons which that history presents could be effectively managed by placing conditions on the registration of Statepatrol Australia Pty Ltd.

6. I agree.  I reject the contention that the delegate had insufficient regard to the ability to impose conditions.  Compliance with a condition that no person under the age of 18 years be accepted into a training course would be impossible to monitor and enforce.

7. A further contention under ground 1.e was that the delegate attached excessive weight to the circumstances surrounding the incorporation of Statepatrol and the appointment of the appellant’s previous director.  This relates both to the fact that Statepatrol was incorporated with Mr Bobak as its director whilst he was bankrupt, and the still unexplained directorship of Mr Cole.  I reject the contention that excessive weight was attached to these matters.  A breach of the Corporations Act is a serious matter; it is not a mere technicality.  The relevance of the directorship of Mr Cole is that he was, in fact, the sole director of Statepatrol at the time that the first application for registration was made.  However, Mr Bobak, who was not then a director or shareholder of Statepatrol, made the application on behalf of Statepatrol, representing himself on the application form as a director, with no mention of Mr Cole.  The application form includes a statutory declaration, which Mr Bobak signed before a Justice of the Peace, declaring that the information in the form was true and accurate.  At best, Mr Bobak’s conduct in lodging that application was careless.  He persistently avoided explaining that conduct, even in evidence in the hearing of this matter.

8. It was complained in ground 1.d of the Notice of Appeal that Mr Garrand attached excessive weight to the nature and length of the bankruptcy of Mr Bobak.  This was a factor in Mr Garrand’s decision, but was not, by itself, decisive.  I do not consider that excessive weight was attached to it.

9. Ground 1.d also complained that insufficient weight was attached by Mr Garrand to the correspondence between Statepatrol and the Road Transport Authority of New South Wales (“the RTA”) in relation to Statepatrol’s use of the RTA’s name and logo.  On the basis of the material before me, it appears that the RTA became aware in about April 2009 that Statepatrol was advertising on brochures and on its website that it was “Road and Traffic Authority New South Wales ACCREDITED” to provide traffic control training when this was not, in fact the case.  The RTA apparently wrote to Mr Bobak asking that Statepatrol cease making this false representation, and the practice ceased.  It is evident from his letter of 10 July 2009 to Statepatrol that some weight was attached to this incident.  Mr Garrand commented, in relation to it, that it “did not give me confidence that Mr Bobak will discharge his duties appropriately as the responsible person for Statepatrol were it to become a registered training provider.”  That seems to me to be a reasonable inference to draw from the incident.  Presumably, in the ground of appeal, Mr Bobak was seeking to be given more credit by the delegate for responding to the request that he cease making a false representation.  In my view, Mr Garrand’s approach to this issue was the correct approach.

10. Ground 1.f of the Notice of Appeal complained that the delegate failed to consider or attach sufficient weight to Statepatrol’s operations over the last three years “in considering the governance and financial transparency of the Appellant”.  Mr Pritchard, Statepatrol’s accountant, gave evidence.  Mr Pritchard said that he had not audited Statepatrol; his role was limited to preparing financial statements on instructions, and preparing tax returns.  Mr Bobak tendered some financial records of Statepatrol.  These had not been the subject of consideration by Mr Garrand.  In the cross examination of Mr Pritchard, it became evident that there were some irregularities in the accounts of Statepatrol, which had been tendered by Mr Bobak.  It also became evident that Statepatrol had experienced cash flow difficulties.  Mr Pritchard was also cross examined about an advertisement placed on behalf of Statepatrol in the Weekend Australian on 28 November 2009 seeking investors for “short term funding of $100,000 attracting a 15% return paid monthly”.  Such financial information as has become available to the Court on appeal gives rise to concern about Statepatrol’s “governance and financial transparency” rather than giving any comfort.

11. Ground 1.g says:

    The Delegate failed to consider properly or, alternatively, attach sufficient weight to, the consideration that the Director of the Appellant had been and currently is registered for a similar statutory scheme by Queensland Transport, and his subsequent work record under this registration.

12. As described above, Mr Bobak is accredited to provide a specific kind of training in Queensland.  That accreditation does not equate to registration as a training provider under the Act.

    Summary and Conclusion

13. The reasons given by Mr Garrand in his letter to Statepatrol of 14 September 2009 are more than sufficient grounds for his decision to refuse Statepatrol’s application for registration as a training provider under the Training and Skills Development Act 2008.  No cogent reason exists for departing from that decision.

14. Documents were tendered regarding an exchange between the Department of Further Education, Employment, Science and Technology and Mr Bobak, subsequent to Mr Garrand’s decision, regarding allegations of false information in Statepatrol’s promotional material.  In view of my decision that Mr Garrad’s decision should not be departed from, there is no need to consider those documents.

15. The decision of 14 September 2009 to refuse Statepatrol’s application for registration as a training provider pursuant to s.29 of the Training and Skills Development Act 2008 is affirmed.  The appeal is dismissed.