WA Bright Kids Family Day Care Pty Ltd and Secretary, Department of Education and Training (General)

The applicant, WA Bright Kids Family Day Care Pty Ltd, sought review by the Administrative Appeals Tribunal of a decision made by an authorised review officer of the Secretary, Department of Education and Training. This decision affirmed a delegate's cancellation of the applicant's approval as a child care service provider. The cancellation was based on the applicant's deregistration as a company on 18 September 2017, which triggered a mandatory cancellation under s 202(4A) of the A New Tax System (Family Assistance)(Administration) Act 1999 (Cth) (FAA Act).

The primary legal issue before the Tribunal was whether it had jurisdiction to consider the applicant's substantive application for review. This question turned on whether the decision to affirm the cancellation was a "decision of the kind mentioned" in s 138(4) of the FAA Act, which lists the types of decisions that can be reviewed by the Tribunal. The applicant argued that its reinstatement as a company under s 601AH(5) of the Corporations Act 2001 (Cth) meant it had continued in existence, and therefore the cancellation was not validly triggered. The respondent contended that despite the retrospective effect of reinstatement, the applicant lacked legal capacity to operate during the period of deregistration, meaning the services were not operated during that time, thus justifying the cancellation.

The Tribunal considered the effect of s 601AH(5) of the Corporations Act, which provides that a company reinstated under that section is taken to have continued in existence as if it had not been deregistered. However, the Tribunal noted the respondent's finding that directors only regain office from the date of reinstatement and that the company could not have legally acted during the period between deregistration and reinstatement. The Tribunal's reasoning focused on the interpretation of "decisions of the kind mentioned" in s 138(4) of the FAA Act, applying principles of statutory interpretation to determine if the affirmed decision fell within the Tribunal's reviewable categories. The Tribunal concluded that the decision to affirm the cancellation of the child care service approval was indeed a decision of the kind specified in s 138(4)(h) of the FAA Act, and therefore it had jurisdiction to hear the substantive application.