Stirling Skills Training (Inc) and Australian Skills Quality Authority
[2019] AATA 1721
•5 July 2019
Stirling Skills Training (Inc) and Australian Skills Quality Authority [2019] AATA 1721 (5 July 2019)
Division:GENERAL DIVISION
File Number: 2019/2364
Re:Stirling Skills Training (Inc)
APPLICANT
AndAustralian Skills Quality Authority
RESPONDENT
DECISION
Tribunal:Deputy President Boyle
Date:5 July 2019
Place:Perth
The Tribunal makes no order.
.........[sgd]...............................................................
Deputy President Boyle
CATCHWORDS
PRACTICE AND PROCEDURE – application for stay of decision under s 41(2) of the Administrative Appeals Tribunal Act 1975 – prospects of success – consequences for the Applicant – detriment to students – consequences for the Respondent – public interest – whether substantive application would be rendered nugatory if stay order were not granted – stay order to remain in place
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – ss 29, 37, 41(2)
National Vocational Education and Training Regulator Act 2011 (Cth) – ss 2A, 3, 21, 22(1), 29, 35A(1), 36, 36(2), 36(3), 37(1), 39, 39(1), 155, 157, 162, 185(1), 186(1), 199, 200(2), 201, 203(2), 224(1)
Standards for Registered Training Organisations (RTOs) 2015 – cls 1.1, 1.2, 1.3, 1.7, 1.8,1.13, 1.16, 2.3, 2.4, 3.1, 4.1, 5.1, 5.2, 5.3, 8.2, 8.3
Vocational Education and Training Act 1996 (WA)CASES
Australian College of Vocational Studies Pty Ltd and Australian Skills Quality Authority [2018] AATA 1088
Commonwealth and Quirke, Re [1986] AATA 57; (1986) 9 ALD 92
Gurkhas Institute of Technology Pty Ltd trading as Royal Gurkhas Institute of Technology and Australian Skills Quality Authority, Re [2017] AATA 1018
Institute of Training Pty Ltd and Australian Skills Quality Authority [2018] AATA 4127
Labrador Liquor Wholesale Pty Ltd and CEO of Customs, Re [2006] AATA 485; (2006) 90 ALD 761
Menzies Institute of Technology and Australian Skills Quality Authority [2019] AATA 343
Metro College of Technology Pty Limited and Australian Skills Quality Authority (Application 2015/6137) (unreported)
Oaklands and Australian Securities and Investments Commission, Re [2011] AATA 199
Samir Pty Ltd and Aged Care Standards and Accreditation Agency [2012] AATA 333
Scott and Australian Securities and Investments Commission [2009] AATA 798
Secretary, Department of Employment and Workplace Relations and Anastasiadis, Re [2007] AATA 1065; (2007) 94 ALD 255
Secretary, Department of Employment and Workplace Relations and Nicholas, Re [2006] AATA 497
Sher-E-Punjab Pty Ltd and Australian Skills Quality Authority [2018] AATA 46
Technical Education Australia Pty Ltd and Australian Skills Quality Authority [2018] AATA 3047
VBJ and Australian Prudential Regulation Authority (2005) 87 ALD 747
Windshuttle v Commissioner of Taxation (1993) 46 FCR 235REASONS FOR DECISION
Deputy President Boyle
5 July 2019
BACKGROUND AND JURISDICTION
The Applicant is an NVR registered training organisation under the National Vocational Education and Training Regulator Act 2011 (Cth) (the NVR Act). The Respondent is the National VET Regulator under the NVR Act.
On 6 and 7 November 2018 the Respondent conducted a Compliance Monitoring Audit of the Applicant (the CMA). Arising out of the CMA the Respondent determined that the Applicant did not meet certain requirements of the Standards for Registered Training Organisations (RTOs) 2015 (the Standards). The Standards are made under subsections 185(1) and 186(1) of the NVR Act.
On 18 December 2018 the Respondent gave the Applicant a notice under s 37(1)(a) of the NVR Act that the Respondent intended to make a decision to cancel the Applicant’s registration under s 39 of the NVR Act. In accordance with s 37(1)(b) of the NVR Act the Respondent invited the Applicant to provide a written response to the notice by no later than 21 January 2019.
On 21 January 2019 the Applicant provided the Respondent with a written response to the notice.
By a document dated 3 April 2019 (pages 37 and 38 of the documents provided by the Respondent under s 37 of the AAT Act) it appears that the Chief Commissioner of the Respondent agreed to a recommendation that the Applicant’s registration be cancelled under ss 36(2)(f) and 39 of the NVR Act. It is not apparent on the documents that have been provided by the Respondent who made that recommendation.
The Tribunal finds that, for the purposes of s 199 of the NVR Act, the reviewable decision is the decision of the Chief Commissioner, apparently made on 3 April 2019, to accept a recommendation to cancel the Applicant’s registration.
By letter dated 9 April 2019 the Respondent advised the Applicant that the Chief Commissioner of the Respondent had decided to cancel the Applicant’s registration under s 39 of the NVR Act effective from 14 May 2019. The letter of 9 April 2019 included a statement of the reasons for the decision.
On 2 May 2019 the Applicant made application to the Tribunal for review of the decision. As noted at [6] above, it appears on the documents provided by the Respondent under
s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) that the relevant decision was made on 3 April 2019. Section 29 of the AAT Act requires an application for review of a reviewable decision to be made in a period “…ending on the twenty-eighth day after” the receipt of the document which sets out the terms of the decision, whether that be the decision (if it sets out the terms) or another document setting out the terms of the decision if the decision itself does not do so.In its application to the Tribunal lodged on 2 May 2019, the Applicant advises that it received the decision (the Tribunal accepts that that is a reference to the reasons for decision) on 9 April 2019. The second of May 2019 is within 28 days of 9 April 2019. It is therefore the Tribunal’s finding that the application for review of the decision was made within the time prescribed by s 29 of the AAT Act.
On 2 May 2019 the Applicant also lodged a Request for Stay Order under s 41(2) of the AAT Act.
On 21 May 2019 an order was made by consent that the implementation of the reviewable decision be stayed until further order of the Tribunal and that the Applicant neither enrol nor train additional students.
The Tribunal also finds, for the purposes of this stay application, that the acceptance by the Chief Commissioner of the recommendation of cancellation of registration is a decision by the Chief Commissioner to cancel the Applicant’s registration. The Tribunal notes that while the recommendation that was accepted was for the cancellation of registration under s 36(2)(f) and s 39 of the NVR Act, the letter of 9 April 2019 setting out the reasons for the decision referred to the cancellation being made under s 39 of the NVR Act. The instrument of delegation dated 9 July 2018, by which the Chief Commissioner (being a Commissioner as referred to in Schedule A to the instrument of delegation) is delegated identified functions and powers under the NVR Act, does not identify the function or power under s 39 of the NVR Act as being delegated. It does, however, delegate to a Commissioner the function or power under s 36(2) of the NVR Act (item 28 in Schedule A). Section 36(2)(f) of the NVR Act relevantly provides:
(2)The National VET Regulator may do one or more of the following:
…
(f)cancel an NVR registered training organisation’s registration under section 39.
Accordingly, while the instrument of delegation does not specifically delegate to a Commissioner the function or power to cancel registration under s 39 of the NVR Act,
it does so indirectly by delegating the power under s 36(2) which, by subsection (f), includes the power to cancel registration under s 39. The Tribunal also notes that, although the letter of 9 April 2019 refers only to a decision to cancel under s 39 of the NVR Act, that letter is not the decision. The decision itself, the Chief Commissioner’s agreement with the recommendation in the document dated 3 April 2019, recommends cancellation under ss 36(2)(f) and 39 of the NVR Act. Accordingly, the reviewable decision did purport to be made, in part at least, under s 36(2) of the NVR Act which is specifically identified in Schedule A to the instrument of delegation as well as under s 39 of the NVR Act. The Tribunal is therefore satisfied that the Chief Commissioner’s decision made on 3 April 2019 (apparently), to cancel the Applicant’s registration under s 39 of the NVR Act, was within the Chief Commissioner’s delegated powers.
Section 199 of the NVR Act identifies the decisions made under that act which are reviewable by this Tribunal. That section does identify some decisions made under s 36 (items 9, 10 and 11) as being decisions which are reviewable by the Tribunal and also identifies decisions to cancel registration under s 39 as being reviewable by the Tribunal (item 13). It does not, however, specifically identify a decision made under s 36(2)(f) as being a reviewable decision.
Given the Tribunal’s finding in [13] above that the effect of the delegation of the power under s 36(2), including s 36(2)(f), is to delegate the power under s 39, the Tribunal finds that the Chief Commissioner had been delegated the power to cancel registration under
s 39 and that his decision under that section is a reviewable decision under s 199 of the NVR Act.
The Tribunal is also satisfied that the Chief Commissioner, being a person appointed by the Governor-General under s 162 of the NVR Act, is a person who holds office or appointment under a law of the Commonwealth for the purposes of s 224(1)(d) of the NVR Act and is not a member of staff of the Regulator for the purposes of s 224(1)(a) or
s 203(2) of the NVR Act. Accordingly, the application for review of the Chief Commissioner’s decision is properly made under s 203(2) of the NVR Act, that is, the application to the Tribunal can be made without the need for a reconsideration by the Respondent under s 201 of the NVR Act following a request under s 200(2) of the NVR Act.
The Tribunal also notes that s 179(2) of the NVR Act provides that the Chief Commissioner is the Chief Executive Officer and that s 180(2) of the NVR Act provides that “[a]ll acts and things done in the name of, or on behalf of, the National VET Regulator by the Chief Executive Officer are taken to have been done by the Regulator.”
While the provision of subsections 179(2) and 180(2) of the NVR Act would appear on their face to empower the Chief Commissioner, acting in his capacity as Chief Executive Officer, to make a decision to cancel registration under s 39 of the NVR Act, in agreeing to the recommendation in the document appearing at pages 37 and 38 of the documents produced by the Respondent under s 37 of the AAT Act, the Chief Commissioner identified that he was acting as “Chief Commissioner for the Commissioners”. Section 180(2) of the NVR Act, however, refers to “[a]cts and things done in the name of, or on behalf of, the National VET Regulator by the Chief Executive Officer” as being an act or thing done by the Regulator. In agreeing to the recommendation the Chief Commissioner identified himself to be acting “on behalf of the Commissioners”, not “in the name of, or on behalf of, the National VET Regulator.”
It is questionable, therefore, that the Chief Commissioner’s acceptance of the recommendation to cancel the Applicant’s registration fell within the operation of s 180(2) of the NVR Act.
In the end, however, for the purposes of considering the interim stay request, the Tribunal’s finding in [16] above is sufficient to satisfy the Tribunal that it has jurisdiction.
For the reasons set out above the Tribunal is satisfied that the substantive application was made in accordance with the NVR Act and the AAT Act and that it has jurisdiction to review the Chief Commissioner’s decision, apparently made on 3 April 2019, to cancel the Applicant’s registration. The Tribunal therefore has jurisdiction to determine the Applicant’s request for a stay under s 41(2) of the AAT Act.
THE STAY APPLICATION HEARING
The request for a stay order was heard by the Tribunal on 24 June 2019. The Applicant was represented by counsel, Ms Maria Saraceni, and the Respondent was represented by Mr Tim Lloyd. Appearances were by telephone.
The following material had been lodged by the parties:
·the Applicant’s request for a stay order dated 2 May 2019;
·the Respondent’s reply to the Applicant’s request for a stay order dated 8 May 2019;
·two affidavits of Dr Russell Alan Docking sworn 17 May 2019 and 12 June 2019 in support of an application for stay with three attachments;
·three affidavits of Balamurugam Suppiah sworn 20 May 2019 (with 27 attachments), 14 June 2019 (with 19 attachments) and 20 June 2019 (with two attachments);
·the Applicant’s submissions in support of application for stay dated 20 May 2019;
·two affidavits of Amy Lennox both affirmed on 7 June 2019;
·affidavit of Stephanie Trestrail affirmed on 7 June 2019;
·the Respondent’s outline of submissions dated 11 June 2019;
·affidavit of Linda Rene Resnick sworn on 14 June 2019 with attachment;
·affidavit of Sembagakannu Suppiah sworn 14 June 2019;
·the Applicant’s further outline of submissions in support of an application for stay filed 17 June 2019;
·the revoked delegation executed 9 July 2018; and
·the Respondent’s brief summary outline of submissions filed 21 June 2019.
THE LEGISLATIVE FRAMEWORK
Section 2A of the NVR Act sets out the objects of that act as follows:
(a)to provide for national consistency in the regulation of vocational education and training (VET); and
(b)to regulate VET using:
(i) a standards-based quality framework; and
(ii) risk assessments, where appropriate; and
(c)to protect and enhance:
(i) quality, flexibility and innovation in VET; and
(ii) Australia’s reputation for VET nationally and internationally; and
(d)to provide a regulatory framework that encourages and promotes a VET system that is appropriate to meet Australia’s social and economic needs for a highly educated and skilled population; and
(e)to protect students undertaking, or proposing to undertake, Australian VET by ensuring the provision of quality VET; and
(f)to facilitate access to accurate information relating to the quality of VET.
Section 3 of the NVR Act contains the following definition:
VET Quality Framework means the following:
(a)the Standards for NVR Registered Training Organisations;
(aa) …;
(Original emphasis.)
Section 21 of the NVR Act provides:
An NVR registered training organisation must:
(a)comply with the conditions set out in sections 22 to 28; and
(b)…
Subsection 22(1) of the NVR Act provides:
(1)An NVR registered training organisation must comply with the Standards for NVR Registered Training Organisations.
Subsection 185(1) of the NVR Act provides:
(1)The Minister may, by legislative instrument, make standards for NVR registered training organisations, as agreed by the Ministerial Council.
The Standards (see [2] above) are the standards to which s 22(1) of the NVR Act refers.
Subsection 36(2) of the NVR Act is as follows:
(2)The National VET Regulator may do one or more of the following:
(b)give a written direction to an NVR registered training organisation requiring the organisation to notify its VET students, in writing, of a matter set out in the direction;
(c)shorten the period of an NVR registered training organisation’s registration;
(d)amend an NVR registered training organisation’s scope of registration;
(e)suspend all or part of an NVR registered training organisation’s scope of registration under section 38;
(f)cancel an NVR registered training organisation’s registration under section 39.
Subsection 36(3) of the NVR Act is as follows:
(3)In determining what action to take in relation to an NVR registered training organisation, the National VET Regulator may have regard to:
(a)the organisation’s conduct, or circumstances existing, before the Regulator had cause to consider imposing a sanction on the organisation (including before the commencement of this section); and
(b)if section 37 applies-the organisation’s conduct, or circumstances existing, since the Regulator gave the organisation a written notice as mentioned in that section.
Subsection 39(1) of the NVR Act provides:
(1)The National VET Regulator may, by notice in writing, cancel an NVR registered training organisation’s registration in any circumstances that the Regulator considers it appropriate to do so, including for failure to pay a National VET Regulator annual registration charge by the date on which it is payable (see section 232A).
Subsection 41(2) of the AAT Act provides:
(2)The Tribunal may, on request being made by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.
(Original emphasis.)
THE LAW
Both parties provided detailed and comprehensive submissions. In large part the parties’ respective submissions on the law and the matters to be taken into account by the Tribunal in considering a stay application were coincident. The Respondent cites the decision of Member Fice (as he then was) in Secretary, Department of Employment and Workplace Relations and Anastasiadis, Re [2007] AATA 1065; (2007) 94 ALD 255 (Anastasiadis) which in turn cites the decisions of Deputy President G.D. Walker in
Re Secretary, Department of Employment and Workplace Relations and Nicholas [2006] AATA 497 at [21] and Senior Member B.J. McCabe (as he then was) in Re Labrador Liquor Wholesale Pty Ltd and CEO of Customs [2006] AATA 485; (2006) 90 ALD 761. Member Fice in Anastasiadis (at [7]) extracts from the cases that he cites, and then adopts, the following factors to be considered in determining whether a stay should be granted:(a)The prospects of success or the merits of the applicant’s case on review.
(b)Whether there will be prejudice to the parties or anyone else if a Stay were not granted.
(c)Whether it is in the public interest to grant a Stay.
(d)That the review application, if successful, would be rendered nugatory or pointless if the Stay was not granted.
The Applicant in its submissions refers to the decision of Member Parker in Menzies Institute of Technology and Australian Skills Quality Authority [2019] AATA 343 (Menzies) as setting out the relevant considerations and submits (para. 37 of Applicant’s submissions) that:
The factors to be taken into account by the Tribunal are now well-established and the cases referred to in the Respondent’s Submissions do not differ from those advanced in the Applicant’s Submissions.
The Tribunal agrees with the thrust of the Applicant’s above statement, although it is the case that the decision of Member Parker in Menzies, relying on the decision of President Downes J in Scott and Australian Securities and Investments Commission [2009] AATA 798 (Scott), does expand, or at least expresses differently, the considerations as follows (at [16]):
President Downes J, in Re Scott and Australian Securities and Investments Commission [2009] AATA 798 (Re Scott) set out a number of factors to be considered in determining whether to grant a stay under subsection 41(2) of the AAT Act, as follows:
1.The prospects of success;
2.The consequence for the applicant of the refusal of the stay;
3.The public interest;
4.The consequences for the respondent in carrying out its functions, depending on whether a stay is granted or not;
5.Whether the application for review would be rendered nugatory if a stay were not granted;
6.Other matters that are relevant, amongst which I would include the length of time – in that case, it was the ban – that had already been in place and the gap between today and the hearing of the application.
The parties in effect made their respective submissions on the above identified factors which this Tribunal considers to be the applicable considerations.
Prospects of success/merits of the Applicant’s substantive application
Senior Member Cameron in Technical Education Australia Pty Ltd and Australian Skills Quality Authority [2018] AATA 3047 (Technical Education Australia) summarises
(at [68]) the requirement of this consideration as follows:
As has been observed in several authorities, it is not the role of the Tribunal,
in assessing the merits of a stay application under section 41(2), to conduct a preliminary hearing (or sometimes referred to “a mini trial”) of the evidence and issues to be raised subsequently at a final hearing, when evaluating an applicant’s prospect of success. The task of the Tribunal in such an application is to consider whether there exists facts and circumstances which would provide some basis for success.
(Footnotes omitted.)
In making the above observation Senior Member Cameron cited Senior Member Redfern (as she then was) in Re Oaklands and Australian Securities and Investments Commission [2011] AATA 199 (Oaklands) and the tribunal’s decision in Re Commonwealth and Quirke [1986] AATA 57; (1986) 9 ALD 92 at [95] and Senior Member Fice in Re Gurkhas Institute of Technology Pty Ltd trading as Royal Gurkhas Institute of Technology and Australian Skills Quality Authority [2017] AATA 1018. In those cases the tribunals reached similar views to that of Senior Member Cameron. This Tribunal agrees with and adopts Senior Member Cameron’s summation of the exercise to be undertaken under this consideration.
The Respondent points to the Applicant’s antecedent conduct and to what it says is a history of non-compliance as being relevant in determining the Applicant’s prospects of success. The affidavit of Stephanie Trestrail, affirmed on 7 June 2019, refers to reports provided by the Western Australian Training Accreditation Council (TAC) which is the independent statutory body for quality assurance and recognition of vocational education and training services established under the Vocational Education and Training Act 1996 (WA). At paragraph 9 of her affidavit Ms Trestrail refers to TAC audits of the Applicant for the period from 2012 to 2015 (during which period the Applicant was registered under the Western Australian legislation) which found minor, significant and critical non-compliance. She says that the Applicant was found to have significant and critical levels of
non-compliance at two of the three audits undertaken by TAC to check deployment of systems and processes (para. 10 of affidavit of Ms Trestrail).
Ms Trestrail states that the last of the TAC reports, that being one in January 2015, determined the Applicant to be compliant, however, notes that “this outcome rested upon the Applicant’s intent and the compliant implementation of the practice and behaviour proposed by the Applicant in the 2015 Plan and its ‘paper evidence’” (para. 13). On 14 April 2015 the Applicant applied to transfer its registration from TAC to the Respondent.
Ms Trestrail also identifies complaints against the Applicant lodged with the Respondent. The first such complaint, made in September 2017, resulted in the Applicant providing a rectification plan to address the non-compliance. This was followed by a review by the Respondent which, according to the Respondent, indicated that the Applicant remained non-compliant which in turn resulted in the Respondent issuing a notice under s 35A(1) of the NVR Act requiring the Applicant to rectify the breach within 20 working days. It also identified other actions required of the Applicant.
A further complaint was received by the Respondent in July 2018 which resulted in a direction being issued by the Respondent to the Applicant requiring the Applicant to review its training practices and procedures to address the non-compliance within 20 days. Ms Trestrail’s evidence is that the CMA undertaken on 6 and 7 November 2018 determined that there was no evidence that the Applicant had complied with the direction. It was that CMA, and the audit report arising out of the CMA (the CMA Report), which identified the non-compliances which formed the basis of the Respondent’s decision to cancel the Applicant’s registration (see [3] above).
The Applicant provided a response to the CMA Report disputing some of the non-compliances identified in the CMA Report and providing evidence of its compliance and steps being taken to address admitted non-compliances. That evidence, according to the Respondent, did not demonstrate compliance or sufficient steps being taken to address the non-compliances.
Ms Trestrail, in her affidavit of 7 June 2019, asserts that:
51.…this review of the applicant’s antecedent conduct, confirms a consistent pattern of Applicant conduct whereby, notwithstanding plans and undertakings, it fails to implement compliant practices and behaviours that it proposed and incorporated into the rectification evidence of the previous audit.
…
53.Put simply, my review of this affidavit confirms that the Applicant does not effectively implement compliant processes and procedures that it incorporates into “paper” evidence. The Applicant has not demonstrated that it is capable of compliantly implementing all of its intended processes and procedures.
An affidavit affirmed on 7 June 2019 (described as the first affidavit) was also provided by Ms Amy Lennox who describes herself as the Respondent’s Principal Regulatory Officer in the Respondent’s Perth Regulatory Operations Unit. Her evidence in this affidavit is that she was assigned to review the Applicant’s response of 21 January 2019 to the CMA and the Respondent’s 18 December 2018 notice under s 37(1)(a) of the NVR Act (see [4] above).
Ms Lennox’s assessment of the response and the material provided by the Applicant was that the Applicant remained non-compliant with the requirements of clauses 1.1, 1.2, 1.3, 1.7, 1.8, 1.13, 1.16, 2.3, 2.4, 3.1, 4.1, 5.1, 5.2, 5.3, 8.2, 8.3 of the Standards in ways described in her affidavit. Her conclusion (at para. 25 and 26 of her affidavit) was that:
25.Given the Applicant’s demonstrated inability to provide compliant evidence throughout the Audit process to date, I believe that the Applicant is not capable of quickly and effectively rectifying the current identified non-compliances.
26.There is also the Applicant’s failure to undertake the necessary remedial action to identify and address the impact of its non-compliance on its past students.
The Applicant filed seven affidavits in support of this application. They are:
·Two affidavits by Dr Russell Docking, one sworn on 17 May 2019 and the other sworn on 12 June 2019. Dr Docking describes himself as a consultant and a director of Skill Resource Management Systems Pty Ltd, an organisation that provides consultancy services to “Registered Training Organisations” and to “Training Authorities” which operate under State and Federal regulation.
·Linda Resnick (sworn on 14 June 2019) who describes herself as an “RTO Compliance Officer” employed full-time by the Applicant.
·Sembagakannu Suppiah (also known as Kannu Suppiah) (sworn on 14 June 2019) who describes himself as “RTO Compliance and Project Manager employed full-time by” the Applicant.
·Three affidavits by Balamurugam Suppiah (Mr B Suppiah), one sworn 20 May 2019, one sworn 14 June 2019 and the third sworn 20 June 2019. Mr B Suppiah describes himself as the “Executive Officer” of the Applicant.
The relevant history of the Applicant is set out, primarily, in the first affidavit of Mr B Suppiah dated 20 May 2019. That affidavit also states that the steps set out in the Applicant’s response of 21 January 2019 to the CMA Report and the Respondent’s
18 December 2018 notice under s 37(1)(a) of the NVR Act were undertaken by the Applicant and had been maintained up to the time of his swearing that affidavit. Mr B Suppiah also sets out various other steps that the Applicant has implemented in response to the CMA Report and the notice.
Mr B Suppiah’s affidavit of 20 May 2019 also identifies various personnel that the Applicant has had “for the most part of 2018” (paragraph 48) in different compliance and oversight roles and says that since approximately mid-2017 the Applicant has engaged six external consultants to support and assist the Applicant’s Registered Training Organisation (RTO) operations. These external consultants were, according to Mr B Suppiah’s affidavit, engaged because they “had a mix of both training/operational and compliance background/experience” and were “engaged to conduct curriculum development and advise [the Applicant] on RTO compliance standards”. Some $300,000 has been spent by the Applicant in retaining these consultants. He advises that in May 2019 Dr Docking was retained to advise on compliance and to, amongst other things, “review [the Applicant’s] processes and implement a plan to address any non-compliances and deficiencies” (para. 58).
Mr B Suppiah says that he estimated that Dr Docking would be able to complete his “high priority” consulting by mid-June 2019 and complete the “low priority” consulting late June 2019. Mr B Suppiah advises that some of the recommendations of Dr Docking had, at the time of that affidavit, been implemented. He also says that since the audit in November 2018 the Applicant had not enrolled any new students. In relation to completing the courses being undertaken by existing students, Mr B Suppiah says that there were at the time he swore his affidavit seven students involved in the Certificate II Warehousing Operations course and 113 students engaged in the Certificate III Warehousing Operations course. He further says that the Applicant is continuing to attempt to contact former students to offer upgrade and make up courses to address deficiencies identified in the CMA Report. He attaches a spreadsheet which he says details the attempts that have been made in this regard.
In his second affidavit sworn on 14 June 2019, Mr B Suppiah provides more detail of the history of the Applicant and the people that have been involved in the compliance side of the business over the years that it has been operating. He identifies the roles played by identified employees of the Applicant since around the beginning of 2015 and the various outside consultants that have been engaged by the Applicant over the same period as well as various changes to the scope of the Applicant’s registration and the courses offered by the Applicant. There has been over, that period, a significant reduction in the number of regulated courses offered by the Applicant.
Mr B Suppiah’s affidavit of 14 June 2019 sets out over several pages the steps that he says the Applicant has taken to address the non-compliances identified in the CMA Report. He also details the ongoing involvement of Dr Docking and the Applicant’s efforts, acting on the advice of Dr Docking, to address all of the non-compliances and where the Applicant was at in that process. He attaches a copy of Dr Docking’s report of 10 June 2019 in which, according to Mr B Suppiah, Dr Docking expresses the view that the Applicant was at that stage compliant with the Standards.
The third affidavit of Mr B Suppiah, sworn 20 June 2019, provides an update on steps taken with Dr Docking and his review of the Applicant’s operations and procedures.
He advises that of the 112 students enrolled in the Warehouse operation Certificate course, eight had completed the course, 69 had withdrawn (or were uncontactable) and 35 had indicated that they wished to continue. He reported that within that last week he had instructed the Applicant’s “RTO compliance team review Dr Docking’s report, …with reference to the 6 chapters of the User’s Guide to the Standards …which looks at the Standards from the perspective of the student experience. His instruction was “to identify which of the identified non-compliances specifically require rectification for past students” (para. 9).
The Affidavit of Ms Resnick, sworn on 14 June 2019, outlines her role as RTO Compliance Officer of the Applicant. She says that she was directly involved in the CMA in November 2018 and, together with Mr Kannu Suppiah, was present while the Respondent’s personnel conducted the CMA. Ms Resnick was involved in the response to the CMA Report.
Ms Resnick says that at the commencement of the CMA she was of the view that some of the materials that had been prepared for the Applicant by outside consultants did not comply with the Standards but that she had already started to amend those documents. She advised the Respondent’s auditors that she was already undertaking the review and rectification of the documents to achieve compliance. She says that in other cases she formed the view that the Applicant’s documents were compliant but that she, in any event, “took on board” the comments by the Respondent’s auditors and the CMA Report.
She says that at the time that the Applicant provided its response to the CMA Report in January 2019 she had “formed the opinion that the [Applicant] RTO was compliant”.
Ms Resnick in her affidavit also sets out the recommendations that Dr Docking had made up to that point and the steps that the Applicant had taken on those recommendations to achieve compliance. She further advises that Dr Docking will continue to work with the Applicant on an ongoing basis to ensure continued compliance with the Standards and that she will conduct ongoing monitoring and checks to ensure compliance.
Mr Kannu Suppiah in his affidavit in effect largely goes over the same areas covered by the affidavits of Mr B Suppiah and Ms Resnick on the background to the CMA,
the response provided by the Applicant and the steps taken by the Applicant to address the non-compliances identified in the CMA Report. He confirms that the Applicant will continue to retain Dr Docking to advise on an ongoing basis on compliance including
Dr Docking undertaking a quarterly audit of compliance.
Dr Docking’s affidavit of 17 May 2019 sets out in detail his view on the CMA audit and the CMA Report and the steps that he and the Applicant had taken to address the identified non-compliances. Dr Docking disputes that the Applicant is non-compliant in some of the respects claimed in the CMA Report. In particular, in relation to the identified failure of the Applicant to have third party contracts with those who supply services to students on behalf of the Applicant, Dr Docking’s view is that, while it is good practice to have formal arrangements in place, and that it is an area for improvement by the Applicant, absence of such formal arrangements in the present case is not a non-compliance (para. 25).
In respect of other non-compliances identified in the CMA Report, Dr Docking says that “the fact that [the Applicant] is non-compliant across certain standards, in my view these are all non-compliances that can be rectified by educating and working with the RTO, so it can grow, develop and improve, rather than cancelling its registration outright” (para. 29).
At paragraph 32 of his affidavit Dr Docking says that the CMA identified “14 non-compliances with which [the Applicant] takes no objection …with the warehousing study units currently on offer. Many of them are inter-related and, in my estimation, rectifying these non-compliances can be achieved …in a timely fashion and in accordance with the timeframe I have proposed”.
Dr Docking’s second affidavit, sworn on 12 June 2019, provides an update on where the rectification of non-compliance was at that time. At paragraph 34 of his affidavit,
Dr Docking states that:
In my opinion the RTO is now fully compliant with the Standards for RTO’s [sic] 2015. Attached …is a true copy of my audit report reflecting my findings of compliance.
A second affidavit by Ms Lennox, also affirmed on 7 June 2019, reviewed the Applicant’s evidence submitted in support of the present application and responded to some of the material put on by the Applicant. She says that:
…no new evidence had been presented that demonstrates that the Applicant has rectified the non-compliances identified and described in my First Affidavit affirmed 7 June 2019 and is now compliant against the Standards for Registered Training Organisations 2015…
Ms Lennox’s second affidavit sets out why she says that the material and response provided by the Applicant do not address the non-compliances. A lot of what Ms Lennox says in this second affidavit, not surprisingly, appears to be her opinion on what the Standards require and how what has been provided, including the steps taken by
Dr Docking, do not address what she sees as being non-compliances. This is not the sort of matter where a party can simply point to a document and come to a simple yes or no answer. A significant number of the claimed non-compliances relate to a lack of clarity or detail in the Applicant’s documentation. She says for instance that one of the non-compliances was “determined because the Applicant [sic] evidence was inconsistent and unclear as to how implementation of workplace arrangements or how their contribution to the student competency decisions [sic]”. She says that the Applicant “failed to provide evidence for some of the requested Training Products and accordingly, it could not demonstrate that it had rectified the identified non-compliance…” (para 9.4).
It is apparent to this Tribunal that there is between the parties a significant difference in the interpretation of the Standards and what is required to comply. Resolution of that difference is not something that can be done on the affidavit evidence that has been provided by the parties. It does not appear to be disputed by the Respondent that
Dr Docking is an expert in this field. In his affidavit sworn on 17 May 2019 Dr Docking advises that he is a Registered Training Organisation (RTO) auditor, a role that he has performed for TAC for 17 years. This fact he says, reflects his experience and expertise in vocational education and training, developed through his training and experience over
40 years. The affidavits put on by the Respondent and the Respondent’s submissions do not dispute Dr Docking’s expertise in the field. Dr Docking’s view is that the Applicant is compliant.
There does appear on the material before the Tribunal to be a genuine and substantial dispute as to the degree of the Applicant’s non-compliance at the time of the CMA and the degree, if any, of the Applicant’s non-compliance now. The Applicant’s evidence is, on its face, extensive and goes into great detail as to how the non-compliances identified in the CMA Report are disputed or have been, or are being, addressed. The circumstances being considered by the tribunal in Menzies were not dissimilar. In that case, having outlined the evidence as to the steps taken to address non-compliance following an audit, Member Parker observed:
[45]…In the 2018 and 2017 financial year reports, it received significant revenues in the order of $5 million per annum. Against this backdrop, it was not evident to the Tribunal that Menzies had in place a member of staff whose role was dedicated to ensuring that the organisation was, or remained, compliant with its statutory obligations. This struck the Tribunal as somewhat out of place, given that Menzies was operating within a highly regulated sector warranting such attention on an ongoing basis.
…
[47]This impression was reinforced by the fact that only after Menzies had received the first audit report, did it recruit some help by engaging Mr Nash with respect to compliance. The Tribunal notes Mr Nash was disengaged between the time that Menzies submitted its first rectification report and when it received the ASQA’s decision not to renew its registrations on
5 December 2018. This suggests that Menzies’s inclination to use Mr Nash was limited to getting it out of trouble, rather than to proactively ensuring that Menzies was compliant or to make good its previous remediation promises to the ASQA.
[48]The initial impression gained by the Tribunal was that the priority for the RTO has been to minimise costs in order to maximise profits, at the cost of ensuring that it was operating as a compliant RTO, perhaps in hope that if the relevant regulator caught up with it in time, it would be able to remedy the situation at that point.
…
[50]The Tribunal accepts the contention of the ASQA that these are sectors in which it is critically important that the persons being granted qualifications are assured to have the skills and knowledge to carry out their roles in those sectors, so as not to present a risk to persons receiving services in those sectors.
[51]It may be that by the time of the substantive hearing, Menzies can show that all of its assessment tools have been revised and are compliant;
all reassessments have been conducted; and that it has established sufficient internal resources and practices to ensure that ongoing monitoring proactively takes place at Menzies through adequate internal resourcing. Based on the submissions made by Menzies’s counsel at the stay hearing, the Tribunal has some confidence that Menzies will endeavour to put itself in a position where it can demonstrate those things at the final hearing. However, given Menzies’s history to date, the Tribunal is careful not to overstate its confidence about this.
[52]The Tribunal’s initial impression is that there are serious concerns about how Menzies has approached compliance and what appears to be a reactive attitude to meeting its compliance obligations in the past. However, there are signs that Dr Chun and Mr Chun now have a greater appreciation of the importance of such matters, which give rise to some hope that things might change.
[53]The Tribunal is satisfied on the basis of its initial impression about this case, that Menzies’s prospects of success are not poor. However, the Tribunal does not consider that Menzies prospects of success could be presently characterised as reasonable or good. By the time of the substantive hearing (planned to take place in June 2019), which is the relevant timing for my consideration, it is possible that Menzies ’s evidence may be greatly improved to a point where it could be fairly stated that it has at least reasonable prospects of success. The Tribunal considers that this consideration weighs in favour of granting a stay, but not to the point that the stay should be unconditional.
The Applicant’s case and its evidence in the present matter are, in the Tribunal’s assessment, better than those indicated by the tribunal’s description in Menzies. A stay was granted by the tribunal in Menzies. Similarly in the matter of Australian College of Vocational Studies Pty Ltd and Australian Skills Quality Authority [2018] AATA 1088 Member Parker found that the applicant’s “prospects of success at the final hearing were not hopeless. However, the Tribunal considers that ACVS’s prospects are poor”. In that case a stay, albeit on conditions, was granted.
The Tribunal notes the statement of Senior Member Redfern (as she then was) in Oaklands wherein she stated at [20]:
[20]ASIC submits, correctly in my view, that it is not the role of the Tribunal to conduct a preliminary hearing of the issues to be raised at the substantive hearing of the application. The Tribunal must consider whether there are facts and circumstances which, if established at the substantive hearing, would provide a basis for success: Re Commonwealth of Australia v Quirke [1986] AATA 57; (1986) 9 ALD 92 at 95.
And then, having outlined the affidavit and oral evidence presented by the parties at the stay application, Senior Member Redfern said:
[32]These matters, and the question of whether Mr Oaklands has contravened a number of provisions of the Corporations Act, should be the subject of argument at the substantive hearing. In my view there is sufficient evidence about prospects, subject to the other considerations, to warrant a stay.
In the present case there is, in the Tribunal’s view, a large volume of evidence presented by both parties going to the Applicant’s non-compliance, its history of non-compliance,
but more importantly, evidence as to the steps that have been taken by the Applicant to address non-compliances and even evidence from Dr Docking that the Applicant is now complaint with the Standards. There also appears from the material filed to be a bona fide and substantive dispute as to the proper construction and application of certain of the Standards. These are matters that can only properly be dealt with at a substantial hearing.
The Tribunal notes the comment of Deputy President Forgie in Samir Pty Ltd and Aged Care Standards and Accreditation Agency [2012] AATA 333 (Samir), a case cited by the Respondent in another context, in which Deputy President Forgie said:
[8]Having regard to those interests, other matters become relevant in considering whether or not I should make an order under s 41(2) are:
(1)the prospects of success of Samir’s application for review of the Agency’s decision:
(a) In assessing prospects of success, this passage from the judgment of Von Doussa J in Windshuttle v Commissioner of Taxation [5] in the context of an application to extend time to apply to the Tribunal is relevant:
“...It is sufficient for that purpose, if the parties chose to so argue their case, to merely identify the factual assertions which the applicant made in the objection, and then to consider whether the application of the law to those assertions would bring about the result for which the applicant contends. In other words the assertions can, if the parties so choose, be treated as pleadings are treated where an application is made to strike out an action on the ground that the pleadings disclose no cause of action. On an application of that kind the true existence of the facts alleged in the pleadings is not explored by evidence. That is left for the trial if there is an arguable case on the pleadings. ...”;
The Tribunal is satisfied that the Applicant has provided material which raises factual and legal arguments that, if resolved in favour of the Applicant at the substantive hearing, would, or at least may, result in a final decision that the Applicant’s registration under the NVR Act should not be cancelled. The prospects of success in the present case reach the level described by Senior Member Cameron in Technical Education Australia; “that there exist facts and circumstances which would provide some basis for success”, and the level identified by Von Doussa J in Windshuttle v Commissioner of Taxation (1993) 46 FCR 235; 93 ATC 4992; 27 ATR 88 cited above (see [70] above).
The consequence for the Applicant of the refusal of the stay
In its submissions the Applicant identifies the following consequences of the Applicant’s registration being cancelled:
(a)
the redundancy of staff within the organisation that will not be able to be
re-allocated elsewhere within the business;
(b)the inability of the organisation as a not for profit to be able to fulfil its objects;
(c)the inability to provide valuable service to regional and remote students who otherwise to do have access to such programs; and
(d)the adverse reputational damage the Applicant is likely to suffer.
At paragraph 82 of his affidavit of 20 May 2019, Mr B Suppiah states that the main concern is that if a stay is not granted the Applicant will lose its non-accredited course, Employment Skills Training (EST) which is funded by the Australian Department of Jobs and Small Business (DJSB). While the EST course is not a regulated course under the NVR Act, DJSB requires the Applicant to maintain its status as an NVR registered training organisation under the NVR Act. He explains that the EST course is delivered over a three week period with a total of 75 hours of training. His evidence is that the EST program is tailored for indigenous students and reaches students in most regional locations including the Great Southern, Broome, Kalgoorlie, Esperance and Geraldton. The Applicant is the largest EST panel provider in Western Australia with (according to DSJB) 33% of the total Western Australian enrolees of 10,314 and has an engagement rate of 64% from 386 courses (Annexure BS23 to affidavit of B Suppiah).
Mr B Suppiah says (para. 90-95) that:
(a)Since inception in April 2017, the EST has involved 3,376 participants in 25 locations across Western Australia and has expanded from five regions to eight regions.
(b)Currently the Applicant is running 25 courses across Western Australia and has scheduled to commence 85 courses over the next three months with 63% of the courses being conducted in metropolitan areas and 37% in regional areas.
According to Mr B Suppiah there are about 36 employees of the Applicant involved in the delivery of the EST programs. The income generated by the EST program grew from $981,000 in FY18 to $1,600,000 up to the date of the affidavit. Mr B Suppiah advises that there are 48.3 full time equivalent staff (being 37.3 who conduct the non-accredited courses and 11 who conduct the accredited courses) who will potentially lose employment if the Applicant’s registration is cancelled. He states, that if the Applicant lost its registration “it is highly likely that [the Applicant] will become unsustainable” (para. 111).
The Respondent is critical of the Applicant’s failure to provide financial material, cash flow statements, balance sheets, income and revenue statements or details of other resources or related company details on which an assessment of the financial impact on the Applicant of its registration being cancelled. It also points to the fact that the Applicant is presently seeking to reduce the number of accredited courses for which it is registered and submits that the Applicant’s credibility in relation to the financial detriment that it will suffer is diminished “when tested against its offer to divest itself of the majority of its qualifications”. The Tribunal does not see how the Applicant seeking to reduce the number of courses in its registration affects its credibility in claiming financial detriment that would flow from having its registration cancelled. The Tribunal understands the evidence of Mr B Suppiah to be to the effect that while the accredited courses represent only a portion of the Applicant’s business, maintaining its registration under the NVR Act is critical to maintaining a large portion of its business. That proposition does not appear to be disputed by the Respondent and if Mr B Suppiah’s evidence as set out above is to be accepted, and there is no basis for the Tribunal not to accept that evidence, it is foreseeable that the Applicant will suffer a significant financial detriment, potentially, according to Mr B Suppiah, to “unsustainability”, if its registration is cancelled.
The Respondent refers to the decision of Deputy President Forgie in VBJ and Australian Prudential Regulation Authority (2005) 87 ALD 747 and her reference to taking into account the interests of any person who may be affected by the review decision. The Respondent and, in some cases, the Applicant have addressed the impact of the cancellation on others affected by the decision as set out in the following paragraphs.
Students/consumers
The Applicant submits that:
59.The Applicant has the support of organisations within the community that rely on the Applicant's services to provide tailored training to the regions.
60.The Applicant delivers training to indigenous jobseekers, with the Nirrumbuk Aboriginal Corporation in Broome being one such organisation that relies upon the Applicant to provide training and assist the Corporation in fulfilling the needs of its jobseekers.
61.Nirrumbuk Aboriginal Corporation and Advances Personnel Management (APM) have both highlighted the beneficial relationship they share with the Applicants, including the Applicant's ability to tailor programs to the needs of their students.
62.The evidence of the CEO of the applicant is that its regional program has success, with 32 (31%) job placements and 4 internship placements for Nirriumbuk Aboriginal Corporation participants being achieved; and 114 (23%) job placements and 5 internships placements for APM participants.
63.The Applicant currently has courses scheduled to be provided over the next 3 to 4 months. If the Applicant loses its RTO status this will cause significant disruption to students about to commence a course.
64.Those students may not be able to locate alternative training.
65.There is currently no other provider of this training in some of the regions, including Broome. This will impact most upon these students given their limited means to travel to obtain alternative training.
The affidavits lodged by the Applicant support the above contentions.
The Respondent submits that:
79.To allow the Applicant to keep operating would mean that prospective students would continue to receive non-compliant training and receive a qualifications or perhaps Statements of Attainment that have no sound basis in competency-based learning and training.
80.If the Tribunal affirmed the Cancellation Decision at the substantive Hearing, then the Respondent must cancel any qualifications issued and students would have to render themselves for re-training with a compliant RTO at their personal cost.
…
82.The Respondent submits that the Applicant owes a special responsibility to students. The Applicant's non-compliant conduct is proof that it has neither accepted nor acted appropriately regarding that responsibility. No student or consumer should have to cope with doubts regarding the competency and compliance of the vocational education and training provider.
The Tribunal finds that the detriment that would be caused to students, current, past and prospective, particularly EST program students, as identified by the Applicant above, outweigh the detriment to students identified by the Respondent. While it may be the case that if the final determination of the Tribunal is that the Applicant’s registration is to be cancelled then students who had received NVR Act based qualifications will have those qualifications cancelled and will have to submit to further training, the number of students likely to be affected if a stay is granted and registration is subsequently cancelled is relatively low; in the vicinity of 43 (see [54] above). The number of students, and more particularly prospective students, who would be impacted if the stay was not granted and the Applicant’s registration was cancelled with immediate effect is much greater if, as a consequence of the cancellation of the registration, the EST program does not go ahead. That figure, based on the evidence identified in [73] and [77] above, is likely to be in the hundreds. As the EST course is not regulated under the NVR Act, qualifications issued in that course will not be invalidated if a stay is granted and subsequently the Applicant’s registration is cancelled. In looking at the number of students and potential students affected, the potential detriment in granting the stay is significantly less, certainly to the EST students, than the detriment would be if a stay is not granted.
Employers of Applicant’s students
The Respondent says that there is no evidence that the Applicant has conducted remediation of past students and that this will negatively impact the employers of such students. It is claimed by the Respondent that this will mean that employers of those students will have to expend resources in having them re-trained.
The Applicant’s submissions do not respond to this assertion.
While the Tribunal accepts that the scenario posed by the Respondent may occur, it is largely in the realms of immeasurable speculation. No evidence was provided by the Respondent to support or quantify the consequences of the potential scenario occurring. While the Tribunal is mindful of the difficulty that would exist in producing evidence of the likelihood and consequences of such eventuality occurring, the Tribunal is bound to make its decisions based on probative evidence.
The Tribunal does not reject the possibility that there may be some consequence to an employer who employs a student who receives a qualification in the period when a stay,
if one were to be granted, was in place, however, it is so speculative and incapable of any sort of measure of number affected and what the effect would be that little weight can be given to this potential effect of a stay.Detriment to Complaint Training Organisations
The Respondent submits that registered training organisations “that have satisfactorily demonstrated compliance may lose potential students to the Applicant at a time when the Applicant’s compliance against the Standards and its capacity to deliver competent outcomes is under question”.
The Applicant did not respond to this submission.
This submission, as with the submission relating to the detriment to employers of the Applicant’s students, is not supported by any evidence and is speculative and immeasurable. While the competition and free-market forces and assumed capacity which seem to underlie this theory of potential detriment may be matters of which the Tribunal could take “judicial” notice, as there is no way of assessing the number of alternative NVR registered training organisations that might be impacted or the extent of any such impact, little or no weight can be given to this consideration.
Detriment to the Respondent
The Respondent (at para. 88 of its submissions) opens its submission on this point that “[t]he Applicant may submit that a Stay does not adversely affect the Respondent’s interests”. As with the previous two submissions, the Applicant did not respond to this submission notwithstanding that the Applicant’s submissions (lodged 17 June 2019) were provided six days after the Respondent’s submissions (lodged 11 June 2019).
The Respondent’s submission is that:
88.…the totality of the professional credibility of the NAT VET Regulator and the efficacy of the regulatory framework generally suffers detriment if the Applicant continues to operate without rectification of antecedent conduct identified by the Respondent as being harmful to the interests of students and the public.
89.Relevantly, the Respondent provides an important regulatory service for other government funders of training. Those funding agencies take some comfort in the fact that scarce public resources will only go to training providers that secure and maintain registration under the Respondent's regulatory framework.
The Applicant did not respond to this submission.
The Tribunal does not accept the Respondent’s submission. The Respondent is the National VET Regulator under the NVR Act. It is a statutory body created under s 155 of the NVR Act and its functions are prescribed by s 157 of that act. They are not and cannot be affected by the grant of a stay by this Tribunal under s 41(2) of the AAT Act.
The Respondent refers to the comments of Senior Member Puplick in Institute of Training Pty Ltd and Australian Skills Quality Authority [2018] AATA 4127 at [61] wherein he refers to the Tribunal having “regard to the fundamental elements of the regulatory scheme in assessing stay decisions”. It is, with respect, an unsustainable leap to draw the conclusion that the Respondent seeks to make to the effect that the grant of a stay, a stay specifically provided for by s 41(2) of the act governing the powers and functions of this Tribunal, somehow diminishes the standing, power or authority of the Respondent.
The Respondent is a statutory body with standing, powers and functions prescribed by the NVR Act. That standing, and those powers and functions are clearly not impacted by any stay that this Tribunal may grant under the provisions of the legislation governing the role and powers of this Tribunal.
Public interest
The Respondent submits that:
91. The public interest is best served by the allowing the Respondent's Decision to be effective immediately. It serves the public interest by demonstrating to the vocational education market that non-compliant conduct will not accepted and cannot be avoided ex post facto simply by using the “de-novo” character of the Tribunal review process to play what in the vernacular is, “catch up football” or compliance by “drip-feed”.
The Respondent cites a passage from Deputy President Forgie’s decision in Samir wherein Deputy President Forgie said:
[65] I have not specifically mentioned the staff at Curie as persons whose interests are affected by the decision under review. They certainly will be for, if I do not make a stay order, I accept Mrs Kahn’s evidence that Curie will have to close after about three weeks. That means that the staff will no longer have positions at Curie. I acknowledge that is a matter of considerable concern but I do not think that their interests are directly relevant in this matter. The Act is concerned with the provision of care to residents and the maintenance of that care at an appropriate level that ensures their health, safety and well-being. The Accreditation Standards and the procedures and monitors that I have outlined in Attachment A are directed to achieving that outcome. They are not directed to ensuring ongoing employment for those engaged in the provision of that care.
The Respondent seems to suggest that the above passage from the decision of Deputy President Forgie should be taken as a statement that the public interest, which in paragraph 91 of its submissions the Respondent describes as “demonstrating to the vocational education market that non-compliant conduct will not be accepted and cannot be avoided ex post facto”, in all cases overrides the other considerations identified in the cases cited by both parties (Anastasiadis and Scott) and set out in [36] above.
This Tribunal does not accept that to be what Deputy President Forgie is saying.
The public interest, the interest in there being certainty and consistency in the enforcement of the requirements of the relevant legislation, is one, but only one, of the considerations that must be taken into account and balanced against the other relevant considerations.
The Respondent also submits at paragraph 96 of its submissions:
…that protection of the public interest assumes even greater importance where the non-compliant training is high-risk such as childcare, education and the health UOCs of delivering first aid type training in a competent manner. These work areas impact directly and significantly on the physical safety and well-being of the public, especially children.
It is not clear to what the Respondent is referring. The relevant regulated courses are in warehouse operations and the non-regulated courses that may be affected relate to job readiness through the EST program. There is no evidence before the Tribunal indicating that these programs involve children or the physical well-being of the public.
The Respondent also refers to the passage in Member Parker’s decision in Sher-E-Punjab Pty Ltd and Australian Skills Quality Authority [2018] AATA 46 (Sher-E-Punjab) (which the Tribunal notes adopted the six considerations for granting a stay identified by President Downes J in Scott (see [36] above)) wherein she observes:
[109] The Tribunal is satisfied there is a real risk that a number of the objectives of the legislative regime including the risk of damage to the reputation of the Australian vocational education and training sector and the risk of undermining and de-valuing the qualifications issued by SPI, would not be met if SPI were permitted to continue operating for the time being as an RTO and CRICOS provider. The Tribunal considers that SPI’s prospects of being found, at the final hearing, to have implemented a system of fabricating its student files and providing false information to the ASQA about that when it is audited is high.
The situation in the present case is significantly different to the situation described by Member Parker. In the case being considered by Member Parker the registered training organisation had engaged in deliberate deception and falsification, and, as she observed, there was, in her assessment, a high prospect of that behaviour being proved at the hearing. The facts of and the relevant behaviour in the Sher-E-Punjab case are materially different to the present case.
In relation to the consideration of the public interest, the Applicant submits that it is mindful of protection of students and the integrity of the VET system, but submits that it “…provides a very important role in its work with socially and economically disadvantaged students, and has been doing so for some 35 years”.
The Applicant says that given the steps that it has taken to address the non-compliance and its retaining of Dr Docking on an ongoing basis to ensure future compliance,
the public interest is in the stay being granted and the Applicant being able to provide the current courses.
The Tribunal is mindful of the history of the Applicant’s non-compliance over its recent past and its apparent inability, or lack of will, to adequately address compliance with the Standards, however, on the basis of the steps that have been and are currently being taken by the Applicant to address the non-compliance it appears that appropriate action is being taken by the Applicant. In relation to the issue of the public interest, the Tribunal does accept that the Applicant has and continues to provide an important public service to disadvantaged members of society, particularly in the EST program to regional and indigenous communities. The Tribunal is also mindful of the very limited number of students currently enrolled in its only two regulated courses. The Tribunal is satisfied that, on balance, the public interest is served by the Applicant being able to continue to provide those services and a stay being granted.
Whether the application for review would be rendered nugatory if a stay were not granted
The Respondent cites Deputy President McCabe’s order made on 24 December 2015 in Metro College of Technology Pty Limited and Australian Skills Quality Authority (Application 2015/6137) (unreported) wherein Deputy President McCabe, having gone through the relevant considerations such as the ability of the applicant to recover if a stay was not granted, the impact on students, the impact on employees of the applicant and the public interest, decided that “[o]n balance, I am not satisfied it is desirable to order a stay under s 41(2).”
That was Deputy President McCabe’s judgment based on the circumstances of that case and the evidence presented which is only referred to in very general terms in the interlocutory decision that is only 17 paragraphs long. No general principle can be drawn from that decision other than, having taken into account the considerations identified by Deputy President McCabe, on balance he did not consider it appropriate to exercise the discretion to continue the stay order made under s 41(2) of the AAT Act.
The Respondent under this consideration also makes the assertion that:
107. In any event, the bottom line is that the Applicant currently has no students and no visible income stream…
That is not what the evidence discloses. The Applicant does have students, although not many, enrolled in the two regulated courses, but does have a significant number of students in the EST program who, on the evidence before the Tribunal, will be affected if the Applicant’s registration is cancelled. The evidence of Mr B Suppiah is that the Applicant generates significant income (see [75] above).
The Tribunal accepts that while there would be considerable disruption and financial and reputational harm to the Applicant if the stay was not granted, or more accurately continued, there is no evidence that the Applicant would go out of business or that the substantive hearing would otherwise be rendered nugatory if a stay was not granted.
CONCLUSION
Applying the considerations identified by President Downes J in Scott, the approach that has consistently been taken by tribunal members since the time of that decision,
the Tribunal finds that, on balance, the order made by consent on 21 May 2019 that the implementation of the reviewable decision be stayed until further order of the Tribunal and that the Applicant neither enrol nor train additional students, should remain in place. Given the terms of that order, the Tribunal makes no order.
I certify that the preceding 109 (one hundred and nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle
......[sgd]..................................................................
Associate
Dated: 5 July 2019
Date of hearing: 24 June 2019 Counsel for the Applicant: Ms M Saraceni Solicitors for the Applicant: Cullen Macleod Lawyers Representative for the Respondent: Mr T Lloyd
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