Western Australian International Education Marketing Group (Inc) and Australian Trade Commission
[2003] AATA 1267
•12 December 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1267
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2001/423
GENERAL ADMINISTRATIVE DIVISION
)
Re WESTERN AUSTRALIAN INTERNATIONAL EDUCATION MARKETING GROUP (INC) Applicant
And
AUSTRALIAN TRADE COMMISSION
Respondent
DECISION
Tribunal Mr M Allen, Member Date 12 December 2003
Place Perth
Decision
The reviewable decision made on 9 July 2001 to refuse to grant approved body status to the applicant is affirmed.
..………(sgd M Allen).....................
Member
CATCHWORDS
EXPORT MARKETS DEVELOPMENT GRANTS – refusal to grant approved body status – applicant eligible to apply under s88(1)(c) of Export Market Development Grant Act 1997-uneccessary to determine if eligible to apply on any other ground – Tribunal obliged to apply terms of Ministerial Determination – decision-maker retains discretion to grant approval despite non-compliance with assessment criteria specified in Ministerial Determination – meaning of “industry” – applicant is not a “peak industry association” – applicant does not promote on behalf of the “generic industry” – decision affirmed
Administrative Appeals Tribunal Act 1975, ss 37, 43.
Export Market Development Grants Act 1974, ss 3, 40B
Export Market Development Grants Act 1997, ss 6, 7, 88, 89, 101, 107
Dairy Industry Stabilization Act 1997 ss 11A, 24A
Migration Act 1958 ss 179, 499
Fisheries Act 1952 s8
National Health Act 1953 s99K
Education Services for Overseas Students Act 2000
Education Service Provides (Full Fee Overseas Students) Registration Act 1991 (WA)
School Education Act 1999 (WA)
Curriculum Council Act (WA)
Vocational Education and Training Act 1996 (WA)
Ministerial Determination 1/1997 AB
Re Devlon and Pharmacy Restructuring Authority (1992) 28 ALD 791
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634
Madafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 22, (2001) 118 FCR 326
Minister for Aboriginal Affairs v Peko- Wallesend Ltd (1986) 66 ALR 299
Powell v AAT [1998] FCA 1747, (1998-99) 89 FCR 1
Riddell v Secretary, Department of Social Security (1993) 114 ALR 340, 42 FCR 443 Lynch v Minister for Human Services and Health (1995) 39 ALD 501
Rokabatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238; (1999) 90 FCR 583
Secretary, Department of Primary Industries v Collins 26 ALD 265
Secretary, Department of Primary Industries v Collins 26 ALD 265
Skoljarev v Australian Fisheries Management Authority (1995) 22 AAR 331
Smoker v Pharmacy Restructuring Authority (1994) 53 FCR 287, 125 ALR 577
Re Swan Portland Cement Ltd and Cockburn Cement Ltd (1991) 28 FCR 135
REASONS FOR DECISION
12 December 2003 Mr M Allen, Member
1. This an application by Western Australian International Education Marketing Group (Inc) (“the applicant”) for review of a decision made by the Australian Trade Commission (“Austrade”) on 9 July 2001 whereby Austrade refused to grant “approved body” status to the applicant pursuant to Division 1 of Part 8 of the Export Market Development Grants Act 1997 (“the EMDG Act”).
2. The applicant is an incorporated association and since the making of the application has changed its name to Perth Education City Inc.
3. The applicant was represented by Ms Price of counsel and Austrade was represented by Mr Burrows, an officer of the Australian Government Solicitor. The Tribunal received into evidence the documents filed pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (T1 to T33); further documents described as “supplementary s37 documents” filed by the respondent (S1 to S6); and other bundles of documents filed by the respondent (RA1 to RA15). The applicant tendered a number of documents (A1 to A5, and A7 to A13) as well as videotape concerning its promotional activities, which was identified as A6. At the hearing the respondent also tendered one further document, which was identified as R1. Oral evidence was given on behalf of the applicant by Bradley John Viney, Paolo Amaranti and John Yeudall.
Background and Legislative Framework
4. The matter has a considerable history, some of which must be understood to appreciate some of the issues that arose in the case. Most of this background information was not in contention and the following findings can be made on the oral and documentary evidence.
5. Prior to 1997 the ability of Australian businesses to apply for and receive export market grants was governed by the Export Market Development Grants Act 1974 (“the 1974 Act”). Like the EMDG Act which replaced it, the 1974 Act provided for grants to be made to certain types of businesses that had incurred certain types of expenses promoting the export of their Australian goods, services etc. The 1974 Act also provided for certain types of persons, who would not otherwise be eligible, to receive grants if they gained the status of an “approved body”. Section 40B of the 1974 Act provided that “the Minister, on the advice of [Austrade], may, by writing signed by him, declare an authority or association to be an approved body for the purposes of this Act.”
6. Section 3(1) of the 1974 Act defined “authority or association” as meaning (unless the contrary intention appeared)
“(a)an authority constituted by a law of the Commonwealth or of a State or internal Territory;
(b)a corporation, other than an authority referred to in paragraph (a), constituted for a public purpose by or under a law of the Commonwealth or of a State or internal Territory;
(c) a co-operative association; or
(d)any other body or association, corporate or unincorporate, representing the interests of an industry or of a substantial part of an industry”
7. In September 1994 the applicant, which at that time was not yet incorporated and was known as the “International Educational Marketing Group (WA)”, applied to Austrade for approved body status under s40B of the 1974 Act. The application (T4) referred to how the then Department of State Development of Western Australian had established a marketing group in 1990 to promote the State’s goods and services and that this group had re-organised itself and assumed management of its activities regarding the marketing of the State’s education services to overseas students from the Department of Commerce and Trade (which was the successor of the Department of State Development). The Department was to continue to facilitate generic marketing and provided resources, including secretariat support, for the group.
8. In October 1994 Austrade sought further information from the applicant to enable a full assessment of the application. One item of information sought was “substantiation that the members of [the marketing group] represent a substantial part of the education industry as a whole. …. supply details of the proportion of the industry that is represented by the members [of the group].” (T6).
9. By letter dated 12 October 1994 (T7) the information was provided. In response to the specific information requested above, the response stated that “a list of the members of the group is attached. All the providers of tertiary education in Western Australia who are licensed to provide services to overseas students are included as members with the exclusion of Notre Dame University which has only recently commenced operations and which is at present negotiating admission. Nearly all providers of ELICOS services are members. In total 95% of Western Australian educational institutions are members.”
10. By letter dated 10 April 1995 (T17) the applicant was informed that it had been granted approved body status on condition that the status be reviewed in the 1996/97 year.
11. In September 1995 Austrade informed the applicant that a full review of all approved bodies was to be undertaken and invited the applicant to provide further information.. The applicant was advised that renewal of its approved body status would not be automatic and that each application would be assessed against the requirements of the legislation and the selection criteria.
12. The applicant provided the information sought in October 1995. Document T21 sets out the assessment of the applicant’s claim by Austrade. The document records that the applicant fell within s3(1)(d) of the 1974 Act (see [6] above) because it comprises “all the public and private tertiary institutions in Western Australia, excluding the University of Notre Dame.” The document notes that the applicant satisfies all the requirements of the selection criteria for approved body status and the applicant was recommended for approval. In March 1996 the Austrade Board granted continuation of the applicant’s approved body status (T23).
13. On 1 July 1997 the 1974 Act was repealed and the EMDG Act came into operation. In his Second Reading speech the responsible Minister referred to the bill simplifying the scheme and better targeting its support to small and medium enterprises, but also said that “the fundamental principles of this scheme have not been altered” (Hansard, House of Representatives, 27 February 1997, pages 1521, 1522). The purpose of the bill was said to be, in the accompanying Explanatory Memorandum (Exhibit RA4), to “simplify the structure and improve the readability of [the 1974 Act], increase focus on assistance to small and medium enterprise, and place an upper limit on the cost of the scheme.” With the version of the EMDG Act as published in “Acts of the Parliament of the Commonwealth of Australian passed during 1997, Volume 2", which is prepared by the Office of Legislative Drafting, Attorney-General’s Department, Canberra, is what is described as a “readers guide”. The EMDG Act is described as “a re-write” of the 1974 Act and that “it gives effect to a number of policy changes designed to direct financial assistance most effectively and remove administrative complexity, while ensuring accountability” (at page 1842).
14. Section 6 of the EMDG Act sets out the persons who are eligible for a grant as follows:
“ (1) Each of the following:
(a) an individual who is a resident of Australia;
(b) a body incorporated under the Corporations Law;(c)an association or co-operative incorporated under an Australian law;
(d) a partnership regulated by an Australian law;
(e) a joint venture approved by Austrade under s89;
(f) a trading house approved by Austrade under s89;(g)a body corporate established for a public purpose by or under an Australian law;
is eligible for a grant in respect of a grant year if it satisfies the conditions applicable to it under s7.
(2)A body approved by Austrade under s89 is eligible for a grant in respect of a grant year.”
15. Section 7 of the EMDG Act sets out requirements for eligibility that must be satisfied by those person referred to in s6(1). It is not in dispute that the applicant did not at any time satisfy the requirements of s7 and was not eligible under s6(1). Any eligibility of the applicant under the EMDG Act was dependent on s6(2).
16. Section 88(1) provides that any of the following who may apply to Austrade for approval as an approved body:
“(a)a body corporate established for a public purpose by or under an Australian law;
(b) a co-operative;
(c)any other body corporate representing the interests of an industry or of a substantial part of an industry”.
17. Section 89 sets out the approval process and, so far as is relevant, is as follows:
“89 Approval
(1)Subject to s92, [which is not relevant in these proceedings] Austrade must deal with the application in accordance with the regulations.
…
Note: The powers of Austrade under this section are subject to guidelines (see s101).”
18. Section 101 relevantly provides for the Minister to make guidelines relating to how Austrade should exercise certain powers under the EMDG Act as follows:
“101 Guidelines
(1) The Minister must determine, in writing:
…
(c)guidelines for the exercise by Austrade of its powers under Division 1 relating to the following:
(i)the approval of a person as a trading house or as an approved body;
(ii) …; and
(iii) the variation and cancellation of those approvals; and
….
(3)Austrade must comply with the relevant guidelines (if any) determined under this section in exercising any of its powers or functions under this Act.
(4)A determination is a disallowable instrument for the purposes of s46A of the Acts Interpretation Act 1901.
19. Section 107 defines an “Australian Law” as meaning “a law of the Commonwealth, of a State or of a Territory.”
20. For the purposes of s89(1), regulations, namely the Export Markets Development Grants Regulations have been made but none of the provisions of those Regulations is relevant or arises for consideration in the present proceedings.
21. For the purposes of s101 of the EMDG Act, and pursuant to paragraph 101 (1)(c), the Minister for Trade has made Determination 1/1997AB entitled “Guidelines for the approval, variation of approval, and cancellation of approved bodies” (“the Determination”). The objective of the Determination is stated to be that “the approved body provisions under the Act are designed to encourage export focused industry organisations to promote Australian products on behalf of their particular industry to bring significant net benefit to Australia.”
22. Under the heading “Criteria” the Determination then provides as follows:
“1.In deciding whether to grant approval to a person as an approved body, Austrade will consider whether the applicant meets the objective by reference to the assessment requirements.
2.Without limiting clause 1, this objective will be met where Austrade is satisfied that:
(a)where the applicant is a body corporate representing the interests of an industry or a substantial part of an industry, the applicant is the peak industry association promoting on behalf of that industry and its members;
(b)the applicant does not export in its own right, and promotion is for the benefit of the generic industry rather than for the benefit of individual members;
(c)the applicant has planned export promotional activities for the industry;
(d)the applicant’s export promotional activities are commercially feasible;
(e)the applicant’s export promotional activities are financially feasible;
(f)the applicant can not distribute income to its members or shareholders;
(g)the applicant generates revenue primarily through industry/member contributions;
(h)the applicant’s promotional activities can bring significant net benefit to Australia.
23. Under the heading “Assessment Requirements” the Determination sets out eight factors (marked (a) to (h)) that correspond to the eight criteria set out in the previous paragraph. That section of the Determination is as follows:
“In assessing whether the criteria have been satisfied, Austrade will give weight to the following considerations:
(a)the applicant will be considered the peak industry association where it can demonstrate that it:
·represents the majority of businesses engaged in that total Australian industry;
·has the power to promote overseas on behalf of its members.
(b) the applicant should demonstrate that:
·it is established for the benefit of third parties;
·it does not export in its own rights (sic);
·its promotional activities are for the benefit of the generic industry rather than for the benefit of individual members.
(c) Export promotional activities will be considered planned where the applicant’s business/export plan for its members includes:
·market research that has been undertaken for specific target markets
·an analysis of the industry’s strengthens ad weaknesses
·specific promotional activities to be undertaken
·a list of objectives and milestones to be achieved and a timetable form their achievement.
(d)The commercial feasibility of the applicant’s export promotional activities will be assessed having regard to:
·the technical and managerial skills of the applicant
·the skills and level of staffing (more than two employees)
·the track record of the applicant in developing new export activity
(e) The financial feasibility of the applicant’s export promotional activities will be assessed having regard to:
·the proposed expenditure budget
·the arrangements for funding the promotion
· the applicant’s current financial position
·financial projections for the next three years
·the applicant’s administration costs
(f) The applicant must demonstrate in tis enabling documents that it is unable to distribute income to shareholders or members.
(g) The applicant should generate its income primarily thorough subscriptions or dues from industry/members
(h) The applicant must demonstrate that the export promotional activities have the ability to generate significant net benefit to Australia by providing:
·projected export earnings to be generated by the applicant over the next three years,
·the industry’s current level of export
·increased employment
·new capital investment
·introduction of new technologies and any new value added operations.”
24. Under the heading “Exceptions” the Determination sets out three matters, as follows:
“1.Approval will generally not be granted where the applicant is merely acting as a grants funding agent for its members or where it has been formed purely for the purposes of obtaining a grant.
2.Approval will generally not be granted where the applicant is duplicating the promotional activities of another approved body in the same industry.
3.Approval will generally not be granted where approval will result in a disproportionate level of grant funding being directed to any one industry.”
25. The Determination also contains sections entitled “Variations of Approval” and “Cancellation of Approval” that are not relevant in the present proceedings.
26. In September 1998 Austrade advised the applicant that its status was to be reviewed and sought information from the applicant about its eligibility (T24). The information sought was provided in March 1999 (T25), the applicant pointing out that it had attempted to follow the format of the Determination and that it sought “approval under s88(1)(a) of the EMDG Act and also relies on complying with s88(1)(c) of that same Act.” In relation to criteria 2(a) of the Determination the applicant provided copies of its constituent rules and Certificate of Incorporation. It also provided a current list of its members, noting that they comprised “nearly all of the private and statutory education institutions in Western Australia” and that “in terms of the Australian position, Western Australia educates 14% of the total overseas students studying in Australia.”
27. On 1 October 1999 Austrade informed the applicant (T27) that the review foreshadowed in September 1998 had not proceeded and that the applicant’s status as an approved body would lapse on 16 October 1999 and the applicant would need to re-apply. T27 referred to the application submitted in March 1999 and advised that further information might be requested. Further information was provided by the applicant in September 2000 (T28).
28. Following representations made by the applicant to Austrade and the Minister in June 2001 (T29 and T30) about the delay in the making of a decision, the decision under review was made in July 2001. The applicant was informed (T31) that the application had been considered “at length and in great detail” and that :
“Decisions whether or not bodies such as your organisation should be approved as approved bodies are made by Austrade under a Ministerial determination which provides amongst other things that applicants should be “the peak industry association promoting on behalf of that industry and its members”, and be able to demonstrate that it “represents the majority of businesses engaged in that total Australian Industry”.. This aspect of the determination is intended to restrict approved body status to peak industry bodies which have more or less national coverage, and to deny it to bodies which are regional or state based.”
29. Following a request for reconsideration of that decision the applicant was informed in November 2001 (T1 page 5) that:
· the applicant was not eligible to apply under s88(1)(a) of the EMDG Act but was eligible to apply under s88(1)(c);
· the applicant did not satisfy criterion 2(a) of the Determination because it is “a regional body promoting the interests of Western Australian education providers. As such it represents only 10 to 12% of the total industry. It can not be considered the peak industry association.”
· the applicant did meet the other seven criteria set out in the Determination.
30. The June 2001 decision was a “reviewable decision” by virtue of s97 of the EMDG Act and was reconsidered and confirmed pursuant to s98 of the EMDG Act by Austrade on 1 November 2001. Section 99 of the EMDG Act provides that “an application may be made to [this Tribunal] for the review of a decision of Austrade that has been confirmed or varied under subsection 98(4)”. The applicant has exercised that right.
CONSIDERATION
(a) Is the applicant eligible to apply?
31. It was common ground between the parties that the applicant was eligible to apply for approved body status under s 88(1)(c) of the EMDG Act. I agree that that is so, and so find. However, submissions were made at the hearing about whether the applicant was also eligible to apply under s 88(1)(a). This was relevant because, it was argued, if the applicant was eligible to apply under s 88(1)(a) then criterion 2(a) and assessment requirement (a) of the Determination would not be applicable to the applicant - and would not have to be satisfied.
32. In my opinion that contention is not correct. There is nothing in sections 88 and 89 to indicate that the grounds of eligibility to apply will result in different requirements for assessment. The Determination has as its focus (as evidenced by the statement of its objective) “export focussed industry organisations” who “promote Australian products on behalf of their particular industry.” There is nothing in the Determination, in my view, to indicate that only applicants eligible to apply under s 88(1)(c) will be subject to criterion 2(a) and assessment requirement (a). It seems to me that organisations such as a co-operative or one established for a public purpose – which will be eligible under s 88(1)(b) and s 88(1)(a) respectively – could equally represent an industry or part of an industry, and where that is the case such organisations would also be required to satisfy criterion 2(a) and assessment requirement (a).
33. It follows, in my opinion, that it is sufficient to conclude that the applicant was eligible to apply for approved body status under s 88(1)(c) – and I do not intend to examine the question of whether it is also eligible to apply under s 88(1)(a).
(b) The applicability of the Determination
34. Having established that the applicant is eligible to apply for approved body status I must consider whether that status should be granted. This raises the preliminary question of what role the Determination should play in the assessment of the applicant’s claim. This, in turn, requires consideration of whether this Tribunal is obliged, when reviewing Austrade’s decision, to apply the Determination in the way that Austrade was when making that decision.
35. It is apparent that Austrade applied the terms of the Determination when considering the applicant’s claim in the making of the decision under review. Equally, it is clear that s101(3) of the EMDG Act places an obligation on Austrade to comply with the relevant guidelines contained in the Determination when exercising its powers and functions under the EMDG Act, including the power to grant approved body status. The Determination represents a statement of government policy, in a form that has legislative status, about that approval process.
36. Ms Price contended that although there was such an obligation on Austrade when making the decision under review, there is no such obligation on this Tribunal when reviewing that decision. This is so because s99 of the EMDG Act, which confers jurisdiction on this Tribunal to review the decision, does not specifically require it or otherwise restrict the powers of the Tribunal - and any decision of the Tribunal is made under s43 of the AAT Act rather than under the EMDG Act. Consequently, although it is open to the Tribunal to have regard to and take into consideration the terms of the Determination, it is not under the same sort of obligation that Austrade was when making the original decision. Mr Burrows contended that there was such an obligation on the Tribunal because the Determination has legislative status.
37. Section 43(1) of the AAT Act, so far as is relevant, provides that:
“For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment o the person who made the decision and shall make a decision in writing:
(a) affirming the decision under review;
(b) varying the decision under review; or
(c) setting aside the decision under review and :
(i) making a decision in substitution for the decision so set aside; or (ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.”
38. In Rokabatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238, (1999) 90 FCR 583 at [12] Whitlam and Gyles JJ said that “the locus classicus on the part that government policy may play in merits review remains the joint judgement of Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 418 – 422. Their strictures emphasise the importance of ascertaining, as a threshold question, whether the decision – maker is under a statutory duty to regard itself as bound by government policy.”
39. In Drake Bowen CJ and Deane J said (at 46 FLR 420) that:
“ In some cases, the Tribunal may be expressly required by the Act conferring the right of appeal to regard itself as bound by the principles formulated by the Minister administering some aspect of Act: see, for example, Dairy Industry Stabilization Act 1977 ss 11A and 24A. But that is not the case here. There was not, in the present matter, any express statutory provision either requiring or authorizing the Tribunal to determine the matter in accordance with relevant government or ministerial policy.”
40. As noted by their Honours, in Drake there was no statutory provision that dealt with the relationship between the Minister’s policy statement and the person who exercised the deportation power – or this Tribunal, which reviewed that decision. Statutory provisions that deal with that relationship can be expressed in various ways, as is illustrated below.
41. The sections of the Dairy Industry Stabilization Act 1977 referred to in Drake provided for the relevant Minister to determine dairy quotas and to formulate principles in accordance with which the Minister was to determine the quotas. Section 24A provided for this Tribunal to review the Minister’s determination of a quota and that “ the principles in accordance with which the Minister was …. required to act … are the principles in accordance with which [this Tribunal] shall act in reviewing the quota…”.
42. In Rokabatini (supra), s499(1) of the Migration Act 1958 provided that “a person or body having functions or powers under this Act shall perform those functions, and exercise those powers, in accordance with such general directions (if any) as are given … by the Minister in writing.” Whitlam and Gyles JJ noted (at [8]) that in the court below it had been common ground that the relevant Ministerial Direction was binding on the Tribunal, and went on to observe [at 12], that s499(1) was “a specific statutory provision” that imposed a duty on the Tribunal to regard itself as bound by the policy in question.
43. In Secretary, Department of Primary Industries v Collins 26 ALD 265, s8 of the Fisheries Act 1952 provided that “while a plan of management is in force for a fishery, the Minister and the Secretary shall perform their functions and exercise their powers, under this Act in relation to the fishery in accordance with the plan of management, and not otherwise.” How this Tribunal should take account of the plan of management when exercising its review function was not the subject of any statutory provision in the Act. Heerey J (at 26 ALD 270) said:
“ Parliament clearly intended that a plan of management determined by the minister … should create detailed rights and obligations … The provisions of the Acts Interpretation Act 1901 concerning tabling before and disallowing by Parliament are to apply.
Thus a plan of management stands on quite a different legal footing from policy statements or guidelines. The Minister and the Secretary, like all other citizens, are bound by the law contained in a plan of management just as they are by the law in the Act itself. The AAT when reviewing a decision of the Minister and Secretary is in no different position.
The present situation is to be contrasted with that dealt with in Drake…
It is clear that in Drake the policy statement did not have the force of law.
In the present case, the plan was part of the law which the AAT had to apply in considering whether the decision made was, on the material before the tribunal, the correct or preferable one….”
44. In Ali v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FLR 144, s179(1) of the Migration Act 1958 was in similar terms to s499(1) of that Act quoted in [42] above. At 38 FLR 148 Heerey J said that “since the legislation itself authorises the formulation of the principles contained in the [policy statement], the decision maker and the [Immigration Review Tribunal] were obliged as a matter of law to apply those principles….” .
45. In Re Devlon and Pharmacy Restructuring Authority (1992) 28 ALD 791, s99K(2) of the National Health Act 1953 provided that “ in making a recommendation … the Authority must comply with the relevant guidelines determined by the Minister…”. Such guidelines were to be disallowable instruments and Deputy President McMahon said at [4] and [5] that:
“4.As such they are different from documents which represent departmental policy or even ministerial policy. It has often been said that the Tribunal should pay careful regard to such policy documents while retaining its freedom to give no weight to policy in a particular case….
5.What is before me, however, is not ministerial policy which I am free to disregard if the circumstances warrant a departure. What is before me is a statutory instrument having the force of law which must be interpreted and applied in accordance with the ordinary rules of statutory interpretation.”
46. In the present case s101 of the EMDG Act provides only that Austrade must comply with the relevant guidelines in exercising any of its powers and functions under that Act. The EMDG Act makes no provision, in the way that the DairyIndustry Stabilization Act 1977 did, as to the matters that this Tribunal must have regard in the exercise of it review function. The authorities referred to above, in my opinion, require me to adopt the view that, although the formulation used in the EMDG Act does not specifically refer to the Tribunal, I am obliged to apply the policy principles set out in the Determination in accordance with the terms of the Determination properly construed.
47. That is so, in my opinion, notwithstanding the applicant’s submission that any decision made by the Tribunal would involve the exercise of power under s43 of the AAT Act, rather than any power under the EMDG Act. Although decided in a somewhat different context, it is established by decisions such as Powell v AAT [1998] FCA 1747, (1998-99) 89 FCR 1 per French J and Madafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220, (2002) 118 FCR 326 per French, O’Loughlin and Whitlam JJ that, at least when affirming a decision or setting a decision aside and remitting it for reconsideration, the Tribunal is exercising power under s43 rather than the statute pursuant to which the decision under review was made. The position may be less clear where the Tribunal substitutes a new decision for the old – although French J in Powell thought that even in such a case it was the power under s43 that was exercised.
48. However, French J noted in Powell (at 89 FCR 12) that although “… the source of [the] power is s43(1) ….. the content of the power it confers is defined by the particular enactment under which the decision to review was made.” In my opinion, the fact that the source of the power may be s43(1) does not result in the Tribunal having no obligation to apply a policy that has legislative status because of provisions such as s101 of the EMDG Act. In my opinion the Tribunal remains under such an obligation even though the statute under which a decision is made does not explicitly state that the Tribunal must apply such a statement of policy.
49. I should say, however, that even if I had not reached the conclusion set out in the previous paragraph I would have considered it appropriate to have regard to and apply the terms of a statement of policy such as that set out in the Determination. As Davies J noted in Skoljarev v Australian Fisheries Management Authority (1995) 22 AAR 331 at 336: “…the many reasons which make the adoption of a policy a desirable, indeed a necessary feature, in administrative decision - making” were enunciated by Brennan J, in his capacity as President of this Tribunal in Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634. Davies J also observed (at p337) “it should no longer be necessary for a decision-maker to indicate at any length the considerations which support the application of policy. Rules and standards are important, both as a means of giving effect to lawful policy which a government or an authority has determined and wishes to be implemented and as a means of ensuring that decisions, because they have been taken by reference to rules or settled standards, as fair, consistent and not arbitrary.”
50. In the present case the legislature has conferred on the Minister the obligation to make guidelines regarding Austrade’s exercise of the power to grant approved body status, the Minister has done so, and the resulting Determination has been given legislative status and subjected to Parliamentary scrutiny as a disallowable instrument. I should, therefore, interpret and apply the terms of the Determination in accordance with the ordinary rules of statutory interpretation.
(c) How the Determination should be interpreted
51. It is apparent from [28] and [29] above that Austrade decided to refuse the applicant approved body status because it did not satisfy criterion 2(a) of the Determination – presumably after giving “weight” to assessment requirement (a). It can be taken that Austrade has interpreted the Determination such that an application must be rejected if a representative applicant is not a “peak industry association” because it does not represent “the majority of businesses engaged in that total Australian industry.” That raises squarely the question of how the Determination, and its inter-relationship with the relevant provisions of the Act, is to be interpreted.
52. The answer to that question is not obvious. Specifically, the role of the assessment requirements is not, in my opinion, clear. On its face, the Determination appears to contemplate the following, somewhat circular, decision-making process when a decision is to be made by Austrade whether to grant approval:
· whether or not the objective of the Determination is met will be considered by reference to the assessment requirements;
· however, the objective will be met if the criteria are met to Austrade’s satisfaction; and
· Austrade must give weight to the assessment requirements when assessing whether the criteria are satisfied.
53. That process would seem to suggest that if all the assessment requirements are satisfied then Austrade can be satisfied that all the criteria are satisfied and the objective of the Determination is met. However, the use of the phrase “without limiting clause 1” in clause 2 of the Criteria section suggests that Austrade might be satisfied that the objective is met even though not all of the eight criteria are satisfied – but in such a case the literal words of the Determination would suggest that Austrade would be limited to considering only the specified assessment requirements.
54. In my opinion, an interpretation of the kind apparently adopted by Austrade that would necessarily result in every applicant who has a representative role failing to gain approved body status unless they could satisfy criterion 2(a) by being a “peak industry association” representing the “majority of businesses engaged in that total Australian industry” is not a correct interpretation. Rather, in my opinion, Austrade (and, hence, the Tribunal) retains a residual discretion to grant approved status in an appropriate case. I have formed that opinion having regard to the following factors.
55. First, the power to grant approved body status is a discretionary one conferred on Austrade. Although the Act authorises the making of “guidelines” with which Austrade must comply, it would not, in my opinion, authorise guidelines (howsoever described) that took away the discretionary power conferred on Austrade: see Riddell v Secretary, Department of Social Security (1993) 114 ALR 340, 42 FCR 443 per Gummow, Hill and Cooper JJ; Lynch v Minister for Human Services and Health (1995) 39 ALD 501. The factors that were present in Smoker v Pharmacy Restructuring Authority (1994) 53 FCR 287, 125 ALR 577 (concerning the history of an agreement between the relevant Minister and an industry body) and which led Hill and Burchett JJ to arrive at a conclusion that guidelines validly operated to require the Authority to recommend that refusal be refused are not present in the present case.
56. Second, it seems to me that a non-discretionary requirement that an applicant be a peak industry body representing the majority of businesses in a total Australian industry is at odds with the grounds of eligibility to apply set out in s88(1) of the Act. That subsection distinguishes clearly, in relation to representative applicants, between those that represent the interests of an industry and those that represent only a substantial part of an industry. Both are eligible to apply. That distinction is repeated in criterion 2(a), but the criterion then goes on to require that the applicant be a peak industry association that promotes on behalf of “that industry”.. Criterion 2(a) and assessment requirement (a) would, on the interpretation advanced by Austrade, mean that an organisation that represented a substantial part of an industry, but less than “half” – whether measured by the number of participants, the volume of production or some other measure – would be eligible to apply for approved body status but would necessarily fail in the application.
57. Third, the three “exceptions” (see [24] above) that may lead to an applicant not being granted approval (despite, presumably, being otherwise qualified to be approved) suggest that some form of residual discretion is retained by Austrade to grant or not to grant approval.
58. Fourth, the statement of objective of the Determination (see [21] above) refers only to organisations that promote on behalf of their “particular industry”.. Likewise, the Explanatory Statement concerning the Determination (Exhibit RA2) makes no reference to a need for a successful applicant to be a peak body. Relevantly, the statement is as follows:
“The [EDMG Act] (the Act) provides non discretionary grants to Australian businesses which have incurred specified expenses promoting the export of their Australian goods, services, intellectual property rights, and know how…
The scheme provides for ‘persons’ to be eligible to receive a grant in circumstances where the general provisions of the Act would preclude them from eligibility…
There are a number of organisations which promote on behalf of other people but which are not principle (sic) or intended principle(sic) in transactions. Industry associations such as chambers of commerce are a good example. These organisations often expend money on overseas promotion…
The Act recognises the contribution to export made by these types of organisations by providing eligibility where they meet certain criteria. Organisations in this category wishing to be allowed to claim grants must apply to Austrade seeking “approved body” status … The criteria against which Austrade must consider an application for approved body status, an the criteria for varying and cancelling status is (sic) established by ministerial guidelines…
The guidelines canvass such issues as the status of the applicant in relation to its industry of association, the level of planning on behalf of members, commercial and financial feasibility of promotional activities, and level of net benefit to Australia, and set down factors against each criteria which are to be considered in assessment… “
59. The example given of “chambers of commerce” cannot, in my opinion, suggest that representatives that might be approved will be limited to those at the peak of an industry. The Macquarie Dictionary (3rd edition) defines a “chamber of commerce” as “an association, primarily of business people, to protect and promote the business activity of a town, etc”. The common point of interest for such an association may be, as the definition suggests, geographical (such as a city or some other region) but may equally involve some other attribute – such as a product or an affinity with another country.
60. Finally, the Assessment Requirement section of the Determination refers only to Austrade giving “weight” to the requirements and only for the purpose of assessing whether the criteria have been satisfied. That suggests that the list of assessment requirements is not an exhaustive statement of the relevant factors that Austrade must consider and confine itself to. In addition, as Mason J (as his Honour then was) observed in Minister for Aboriginal Affairs v Peko- Wallesend Ltd (1986) 66 ALR 299 at 309:
“ in the absence of any statutory indication of the weights to be given to various considerations, it is generally for the decisions-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power (references deleted).”
61. In my opinion Austrade must consider the assessment requirements and give appropriate weight to them. As noted at [53], if satisfied that they are all met then Austrade can be satisfied that all the selection criteria are also satisfied and the objective met. That does not, in my opinion, require a conclusion that the only way to gain approved body status is by satisfying all the criteria by satisfying all the assessment requirements.
62. My conclusion is that Austrade and the Tribunal must consider an application in terms of the criteria and assessment requirements, but that there is a residual discretion to grant approved body status in an appropriate case. I turn, then, to consider the merits of the applicant's case against the requirements of the Determination and residually.
(d) The merits of the applicant’s application
63. As regards the criteria in the Determination, it has never been in dispute that the applicant has always satisfied criteria 2(c) to 2(h) inclusive.
64. In relation to criterion 2(b), as noted at [29] above, Austrade told the applicant in November 2001 that all the criteria other than 2(a) were met. However, Austrade’s statement of facts and contentions filed in these proceedings contended that the applicant could not satisfy those parts of criterion 2(b) and assessment requirement (b) which required its promotional activities to be for the benefit of the generic industry – because the generic industry is the “Australian international education industry”, the applicant’s promotional activities are “directed to promoting Perth and Western Australia as international education destinations” and none of the promotional activities are for the benefit of the generic industry.
65. Whether or not the applicant satisfies criterion 2(a) has always been in contention. Austrade contends that the applicant could not satisfy criterion 2(a) and assessment requirement (a) because it “…is not the peak industry association promoting on behalf of the international education industry within Australia…” and ”… does not represent the majority of businesses engaged in the total Australian International education industry…”.
66. At this point it is appropriate to refer to some of the oral evidence given in the proceedings.
Mr Paolo Amaranti
67. Mr Amaranti is an Executive Director employed by the Western Australian Tourism Commission. He has been involved with the applicant, in its various guises, since 1994. He was the applicant’s executive officer and an ex officio member (representing the Department of Commerce and Trade) of its management board. He was involved with the original application for approved body status under the 1974 Act.
68. Mr Amaranti said that the 1980s saw the beginning of the international commercialisation of Australia’s education services industry. In the mid 1980s a small group of institutions formed a loose group to promote their education services to international markets. This group was the forerunner to the establishment of a formal group under the authority of the Ministry of Education. Since this group was an operational marketing association, the responsibility for its coordination was passed to the Department of State Development in 1990. This Department later became the Department of Commerce and Trade.
69. Because of the growth in marketing activities the group needed to become independent in order to achieve its objective of self-regulated coordination of the Western Australian international education service industry. The reorganised group achieved incorporation in 1996 and began trading under the name “Western Australian Education Marketing Group”. It established itself as the State’s peak industry body for international education services and gained approved body status under the 1974 Act. Premises were leased in West Perth in July 1997. It started trading under the business name of Perth Education City in February 1997 and this became the registered name of the association in July 2002. In July 2002 an Executive Director was appointed and in September 2002 the Board of Management was replaced by an Executive Board of Management.
70. Mr Amaranti said that the purpose of the applicant is to provide a forum for the efficient planning, coordination and implementation of the generic promotion internationally of education programmes and services offered by member institutions. The primary objectives are:
·to establish and maintain a co-operative and coordinated approach to the international marketing of the student programmes of its members;
·to manage internationally the destination marketing of Perth;
·to identify and develop new market opportunities and initiatives for members;
·to place international students in member institutions, through a network of WA Education Offices and associate offices;
·to monitor existing markets for members;
·to provide a forum for discussion and networking among members;
·to formulate or assist in formulating strategies and policies in conjunction with the State, Territory and Federal government departments and instrumentalities on all matters relevant; and
·to arrange and provide for the holding of lectures, classes, exhibitions and meetings in furtherance of the objects.
71. The current membership of the applicant consisted of five universities, four English language colleges, five vocational education institutions and seven secondary education colleges (including the Department of Education of Western Australia). The Board of Management consists of six members.
72. Mr Amaranti said that in the mid 1980s the Commonwealth government had legislated (the Education Services for Overseas Students Act 2000, or “the ESOS Act” and related legislation) to regulate recruitment by tertiary institutions of overseas students wishing to undertake education in Australia and this had been followed by Western Australian legislation (the Education Service Providers (Full Fee Overseas Students) Registration Act 1991, or “the ESPRA Act”). His role was to bring together the representatives of the Western Australian institutions for the purpose of international marketing and to use the State legislation to emphasise that Western Australia had an advantage in recruiting overseas students.
73. Mr Amaranti said he thought there were about 130 or more Western Australian educational institutions that were registered on a Commonwealth -administered register of those eligible to recruit international students (“the CRICOS register”) – but many of those were inactive or recruited only a very small number of students. In the year 2000 about 18,000 international students had been recruited by Western Australian institutions and of those about 16,000 had been recruited by members of the applicant – although not necessarily via the applicant’s marketing activities.
74. The applicant’s membership rules require that an education institution can become a member only if it has been enrolling international students for a continuous period of more than six months (T documents page 121). Mr Amaranti said that this was to prevent institutions becoming members who had gained CRICOS registration but were not actively involved in recruiting students.
75. In cross-examination Mr Amaranti said that the Tourism Commission was involved with the applicant because of the view that prospective students choose an institution on the basis of not only the quality of the education but also on the basis of the attractiveness of the destination. The Commission had offered premises and assistance in developing international marketing strategies. The Commission is not involved in that way with any other education organisation and is involved with the applicant because they perceive the applicant to be the peak body in Western Australia in the international education marketing sector.
Bradley Viney
76. Mr Viney is a Senior Executive Officer in the Department of Education Services in the Western Australian Public Service and has worked in that department or in the Education Department since 1984. In his current position he performs a number of functions, which include responsibilities for policy formulation and consultancy advice with respect to the regulation of international education in Western Australia.
77. Mr Viney said that education is a state-based activity, controlled primarily through state legislation. The international education industry can, in general terms, be described as a group of registered providers (ie institutions) delivering various registered courses to full fee paying overseas students. These institutions can be divided into four broad categories, namely (a) universities; (b) schools (government and non-government); (c) vocational education and training (VET), which includes private colleges as well as public TAFE colleges and (d) English language institutions.
78. The universities are state-based, with each of the five Western Australian universities being governed by a Western Australian statute. A number of universities from other states have branch campuses in Western Australia that are registered to deliver education services to overseas students under Western Australian legislation.
79. Schools in Western Australia are governed by the School Education Act 1999 and the Curriculum Council Act 1997, both of which are Western Australian statutes. The State Department of Education and Training regulates government schools in Western Australia, including the registration of schools and ongoing quality control. Schools are funded by State and Commonwealth governments with the funding primarily controlled by the State Department and supplemented by student fees. Non-government schools in Western Australia are governed by Part 4 of the School Education Act and must be registered. They must meet certain minimum standards and the Department is involved in ongoing audits and quality control. With respect to the delivery of education services to overseas students, the Department also assesses matters such as the staff qualifications, marketing and student information, student recruitment and placement, student records, and other matters. The Curriculum Council regulates the curriculum standards in both government and non-government schools. In particular it provides curriculum assessments and moderation in years 11 and 12, they being the last two years of high school.
80. School curricula standards vary from state to state although some standards are similar. From time to time the Commonwealth government, through the Department of Education, Science and Training (DEST), has indicated a desire to introduce a national curriculum and standardise its content across the states. However, as education is a state responsibility, DEST is only empowered to work with the states and territories on issues of common interest.
81. The VET sector operates under the Vocational Education and Training Act 1996(“the VET Act”) of Western Australia, which covers both private colleges and the public TAFE network. All institutions must be registered under the VET Act.
82. In the English language sector institutions must be registered under the VET Act, but their intensive language courses are accredited under two mechanisms, namely the State’s Training Accreditation Council or a national accreditation system known as the National English Accreditation Scheme (NEAS). This latter scheme does not operate under any particular legislation.
83. The Western Australian government’s ESPRA Act is the statute that underpins the regulation of providers of education services to overseas students in this State. It covers all sectors wishing to take overseas students and any institution wishing to take overseas students must be registered under that Act, as must each course. Each institution and course must also be registered by the Commonwealth under the ESOS Act.
84. An overseas student wishing to study in Australia must first be offered a place by an institution. Once offered that place the student must apply for a visa from the Commonwealth government under the Migration Act 1958 in order to enter Australia to study.
85. The Commonwealth government operates a scheme known as the Tuition Assurance Scheme (TAS) which is designed to protect overseas students. A private commercial institution wishing to provide services to overseas students must apply to be part of a recognised TAS. The intention of a TAS is that if a college closes down then overseas students will be guaranteed an equivalent place at another institution at no further cost to the student. The Commonwealth also runs an assurance fund into which all non-exempt providers of education to overseas students must pay a certain percentage of money to protect students in case an institution ceases to operate.
86. Apart from the above Commonwealth involvement, most registration, regulation and quality matters relating to the delivery of education services to overseas students are controlled by State governments rather than by the Commonwealth. International students wishing to study at a university are regulated by the ESPRA Act and the ESOS Act. They must go through the state and Commonwealth registration processes. The same applies to overseas students wishing to study in Western Australia at a government or non-government school, private or public VET provider or an ELICOS provider. ELICOS providers may be accredited by NEAS or they may qualify for registration by the state of Western Australia under the ESPRA legislation.
87. Western Australia has approximately 130 to 135 institutions registered on CRICOS, but the scale of their international student activities varies enormously. It can range from offering services to one student or, in the case of some universities, thousands of students each year.
88. Although from time to time the Commonwealth funds specific areas of priority (such as literacy and numeracy, indigenous education, rural and remote education) the bulk of Commonwealth funding is channelled through State governments. Likewise, although the Commonwealth has tried to develop and implement a national curriculum in schools it is really up to States and Territories to get commonality between curricula, although to some extent progress is often accompanied with specific Commonwealth funds.
89. Under the ESOS Act a National Code of Practice (Exhibit A2 p. 39) was developed by the Commonwealth and the States and Territories as a mean of monitoring providers across Australia in terms of their compliance with the ESOS Act. The Western Australian Department has delegated responsibility to administer the code on behalf of the Commonwealth in this state.
90. In cross-examination Mr Viney agreed that although state statutes establish universities they do not control or regulate the actual educational services the universities offer. This can be contrasted with primary and secondary education where States actually set the standards and content of what education is offered. He agreed that the Commonwealth is the principal funder of the university sector, with the States making a minimal contribution. He agreed that in the last two and a half years there had been developed national protocols for higher education which had been developed between the States and the Commonwealth, but the actual administration of the protocols is a State responsibility.
91. In terms of what might be thought of as a peak body, Mr Viney said it depended on one’s perspective. From a Western Australian perspective the Department looks at the impact here in Western Australia of an organisation and what influence and responsibilities a body may have in this State. A body that might have influence and responsibilities at a national level may well be considered a peak body from a Commonwealth perspective but would not be so regarded in Western Australia. In relation to an organisation known as the Affiliation of International Education Peak Bodies (“AIEPB”), Mr Viney said that he understood it to be a group of peak bodies from around Australia that meets from time to time with the Commonwealth government on broad policy issues concerning international education, particularly with respect to the development of the National Code of Practice under the ESOS Act. It was seen by the Commonwealth as one of the main, if not the, peak body with which the government should discuss changes to national policy .. The Western Australian Department has almost no involvement with the AIEPB. He was not sure if the applicant was a member of that organisation or not. Apart from the work done in relation to the national code under the ESOS Act, he was not aware of any other work that the AIEPB had done.
John Yeudall
92. Mr Yeudall is the executive director of the applicant and gave evidence concerning the number of international students studying (in 2000) at Western Australian institutions which are members of the applicant - based on information recently obtained from members for that year. The table below summarises the data from exhibit A10 (“Overseas Student Statistics 2000” published by DEST) and exhibit A12 (a summary of student numbers for members of the applicant).
Numbers
from A10Numbers
from A12Members of Applicant as %
of totalTertiary Sector* 13 726 13 653 99% ELICOS 3 686 5 716 155% Secondary Education 1 713 840 49% VET 2 949 3 330 113% * includes “offshore” students studying at campuses of member institutions overseas.
93. I will comment below about the data in the table.
94. Central to a consideration of criteria 2(a) and 2(b) and the related assessment requirements are the questions of what is the relevant “industry”, whether the applicant is “the peak industry association” and whether it promotes on behalf of the “generic industry.”
95. In Re Swan Portland Cement Ltd and Cockburn Cement Ltd (1991) 28 FCR 135 at [42] and [43] Lockhart J, after referring to a number of dictionary definitions of the word “industry”, concluded that “an industry, using its plain meaning, is defined only by the product involved” and does not equate with the term “market”.. In that case an issue was the meaning to be given to the expression “Australian industry” – an expression that also appears in assessment requirement (a), albeit in a somewhat different context. In the context of anti-dumping legislation Lockhart J considered that “‘Australian industry’… refers to an industry viewed throughout Australia as a whole and does not refer to a part of that industry, whether the part be determined by geographic, market or other criteria.”
96. The provision of education and training in Australia of international students is a substantial field of endeavour. In the year 2000 there were about 188,000 international students enrolled in Australian education and training institutions and they contributed about $4 billion to the Australian economy (exhibit RA15, page 104). Not surprisingly, because of the economic and migration significance (to mention only two factors) the Commonwealth has a keen interest in, and is an important participant in the field – both as a regulator (through legislation such as the ESOS Act, CRICOS registration and the Migration Act) and as a promoter (through an entity known as Australian Education International, or AEI). AEI is the name under which DEST “works to develop and support the Australian international education and training industry through a wide range of activities, products and services“ (see exhibit RA 6.1, folio 64). In 2000-01 AEI received funding of $15.6 million for its activities (exhibit RA15, page 104).
97. Equally unsurprisingly, state governments also have an interest in and a part to play in that industry as a regulator, provider, funder and promoter amongst other roles. The involvement of the Commonwealth and State governments can be seen, in my opinion, as complementary. For example, before the Commonwealth will consider a provider for inclusion on the CRICOS register the provider must be assessed and approved by the relevant State registration authority (see exhibit RA 6.2 folio 75). Both levels of government have a role to play in that industry and in certain aspects or sectors one may be more prominent that the other – but that does not, in my opinion, lead to the conclusion contended by the applicant that the industry is a state-based one and is not a national one. Rather, I consider that the industry is a national one in vital respects and, in the context of the EMDG Act, must be so regarded.
98. In my opinion, and I find, the expressions ”industry” and “total Australian industry” as used in the Determination are references to the whole of the international education industry in Australia as a whole. In other words, there is a single “Australian” international education industry rather than a number of geographically (specifically, state) based industries as contented by the applicant.
99. The Macquarie Dictionary (3rd edition) relevantly defines the word “generic” to mean “1. Relating to a genus 2. Applicable or referring to all the members of a genus or class… 4. Identified by name of the product itself, not by a particular brand name… 6. A generic commodity”. The expression “generic industry”, in my opinion, refers to all the members of the industry as a whole who are identified only by reference to the name of the industry rather than by reference to the name of the member or some part of the industry.
100. That industry can, of course be made up of a number of parts that may be geographically based. Section 88(1)(c) and criterion 2(a) contemplate that an entity will represent a substantial part of an industry. By accepting that the applicant is eligible to apply under s 88(1)(c), Austrade appears to also accept that the applicant represents at least a “substantial part of an industry”, however the industry may be defined.
101. I consider that to be the case, notwithstanding the obvious problems with the data set out in the table at [92] above – at least in relation to the ELICOS and VET sectors, in which one or both of the sets of data appear to be inaccurate. No information that would enable the data to be reconciled was available to me other than that, in the ELICOS sector, it appears from exhibit A10 that at least some students were not included in the A10 number for that sector if they did not hold certain types of residence visas.
102. Notwithstanding that, I accept the evidence of Mr Amaranti (and I did not understand Austrade to dispute the point) that member institutions of the applicant represent the vast majority of international student enrolments in Western Australia even though they may not be a majority of the total number of Western Australian entities on the CRICOS register.
103. Given my conclusion that the industry in question is a national rather than State-based one, I consider that it follows that the applicant cannot be said to be the peak industry association promoting on behalf of that industry and the members of that industry. The applicant has no national presence, does not represent institutions based outside Western Australia and would appear to have little profile at the national level in terms of significant representative or peak bodies. For example, since 1996 the entity known as AIEPB has existed - and which is described as “a voluntary association of the education peak bodies involved in what is generally called the education export industry.” AIEPB is said to be recognised by DEST and the Department of Immigration, Multicultural and Indigenous Affairs as the primary contact for consultation on international education issues (see exhibit RA7). By way of further example, as part of a review of AEI conducted in 2002 a report was prepared (exhibit RA15) about consultations undertaken by the reviewer with non-Commonwealth organisations. Appendix A to that report contains a list of organisations that attended consultation forums or made written submissions to the review. The applicant was not one of those organisations.
104. As to whether the applicant’s promotional activities are for the benefit of the generic industry rather than for the benefit of individual members (criterion 2(b) and assessment requirement (b)) it is, in my opinion, fair to say that the promotional material that I was referred to (in particular exhibits A6 and S1 to S6) focuses on Perth and Western Australia as an educational destination for international students rather than on the relative merits of the member institutions or their products - although the members are in some of the publications identified by name. However, exhibit S5, (folios 69 and 70) specifically states that “the principal role of [the applicant] is to build a preference for [Western Australia’s] education products in the competitive and lucrative export market” and that the overseas recruitment and marketing offices “…promote only [the applicant’s] education providers…[and]…also promote the advantages of Perth as a study destination, and provide unbiased counselling services to help …choose an institution…”.
105. In my opinion promotion of that type is, ultimately, promotion for the benefit of the members of the applicant and for the Western Australian part of the industry rather than for the benefit of the generic or total national industry.
106. In all the circumstances I find that the applicant is not a peak industry association and does not promote overseas on behalf of the generic industry. I find, therefore, that the applicant does not satisfy criteria 2(a) or 2(b) of the Determination.
107. In my opinion the failure to satisfy those two criteria is an important consideration in exercising the discretion whether to grant approved body status. Those two criteria are, in my opinion, important factors that underpin the type of organisation that should gain that status and receive grants. In that sense they justify, in my opinion, considerable weight when assessing the overall claims of an applicant.
108. That consideration is particularly important in the context of this case, where the applicant is a regional body rather than a national one. The Determination is, in my opinion, a reflection of a Ministerial policy that the financial assistance provided under the EMDG Act is to be directed or targeted in a particular way that is perceived to be most effective in promoting the exports of Australian industries. Specifically attention is focused on the national industry role of a representative body if it is to achieve approved body status.
109. I am aware that that change in policy focus has been the subject of criticism by regional representative bodies. The EMDG Act was reviewed in 2000 by the Austrade Board and one of the issues addressed specifically in the review was the operation of the approved body provisions. Exhibit RA3 contains extracts of the report of the review and folios 22 and 23 refer to submissions about the perceived need to alter the criteria to permit regional representative bodies to gain approval. The report considered that the relaxation of the rules had some merit – but concluded that the rules should not change because a relaxation would lead to significant increase in program costs and risk. Payments would be diverted from other eligible business, “double dipping” could increase and the fragmentation of industry groups could be encouraged.
110. I have referred at [50] above to the benefits of applying policies in administrative decision-making in promoting fairness and consistency, and avoiding arbitrariness. The applicant is a regional body that represents some members of an industry, but does not satisfy two criteria that are important in reflecting a ministerial policy (that has legislative status) about the types of entities that should gain approved body status. No factors have been identified in the proceedings that would, in my opinion, justify the granting of that status to the applicant in the light of the failure of the applicant to satisfy those two criteria. I have no doubt that the promotional efforts of the applicant are of benefit to its members and, indirectly, to the educational sectors of Western Australia and (to a much lesser extent) Australia. The applicant’s focus is, however, in my opinion much narrower that the Minister’s policy contemplates. The importance of consistency of decision-making and the desirability of directing grant funds to nationally representative bodies deserve, in my opinion, considerable weight in the exercise of the discretion to grant or not to grant approved body status. In my opinion the discretion to grant that status should not be exercised in favour of the applicant. My decision is that the decision made on 9 July 2001 to refuse to grant approved body status to the applicant is affirmed.
I certify that the 110 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M Allen, Member
Signed: ...............(sgd V Wong)...................................
AssociateDate/s of Hearing 10 February, 28 March, 23 April, 13 May, 16 May 2003
Date of Decision 12 December 2003
Counsel for the Applicant Ms L Price
Solicitor for the Applicant Carles Solicitors
Counsel for the Respondent Mr T Burrows
Solicitor for the Respondent Australian Government Solicitor
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