FEDERAL COURT OF AUSTRALIA

Productivity Partners Pty Ltd v Commonwealth of Australia [2018] FCA 1562

ORDERS

THE COURT ORDERS THAT:

1.    The originating application for judicial review is dismissed.

2.    The applicant pay the respondents’ costs of the proceeding.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

RANGIAH J:

1    The principal proceeding seeks judicial review of two decisions. Under the first decision, the first respondent, the Commonwealth of Australia, refused to pay the applicant a sum of about $29 million. The effect of the second decision was to decline to revoke the first decision.

2    The respondents have filed a notice objecting to the competency of the application for review. The notice alleges that the decisions are not reviewable under s 5(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) because neither is a “decision…made…under an enactment”. The notice asserts that relief is not available under s 39B(1) of the Judiciary Act 1903 (Cth) because the decisions do not have any operative legal effect and there is no duty which the respondents can be compelled to perform. The notice also asserts that claims for relief in respect of conduct and an alleged failure to make a decision cannot be maintained.

3    In the application presently before the Court, the respondents seek dismissal of the application for review pursuant to r 31.05(5) of the Federal Court Rules 2011 (Cth) on the basis that it is incompetent. In the alternative, the respondents seek summary judgment pursuant to r 26.01(1) on the basis that the application has no reasonable prospects of success.

4    It is necessary to set out some of the legislative provisions relevant to this matter and to describe the factual background before turning to the submissions made by the parties.

The legislative provisions

Administrative Decisions (Judicial Review) Act 1977 (Cth)

5    Section 5 of the ADJR Act provides, relevantly:

(1)    A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds:

...

(d)    that the decision was not authorized by the enactment in pursuance of which it was purported to be made;

(e)    that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

(f)    that the decision involved an error of law, whether or not the error appears on the record of the decision;

...

(h)    that there was no evidence or other material to justify the making of the decision;

...

(2)    The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:

(a)    taking an irrelevant consideration into account in the exercise of a power;

(b)    failing to take a relevant consideration into account in the exercise of a power;

...

(g)    an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;

...

6    Section 3(1) of the ADJR Act defines the expression “decision to which this Act applies” to mean, relevantly, “a decision of an administrative character made, proposed to be made, or required to be made…under an enactment”. The word “enactment” is defined to mean, relevantly, “an Act”.

7    Section 6(1) provides, relevantly, that where a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which this Act applies, a person who is aggrieved by the conduct may apply for an order of review in respect of the conduct.

8    Section 7(1) provides, relevantly, that where a person has a duty to make a decision to which this Act applies, and there is no law that prescribes a period within which the person is required to make that decision, and the person has failed to make that decision, a person aggrieved by the failure to make the decision may apply for an order of review on the ground that there has been unreasonable delay in making the decision.

Judiciary Act 1903 (Cth)

9    Section 39B(1) of the Judiciary Act provides, relevantly:

(1)    ...[T]he original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.

Higher Education Support Act 2003 (Cth)

10    Section 3–1 indicates that the primary purpose of the Higher Education Support Act 2003 (Cth) (HECS Act) is for the Commonwealth to give financial support for higher education and certain vocational education and training (VET) through grants and other payments made to providers and through financial assistance to students (usually in the form of loans).

11    Schedule 1A of the HECS Act provides for loans, called VET FEE-HELP assistance, to be made available to students enrolled in certain VET courses. The applicant is approved as a VET provider under cl 11 of Sch 1A.

12    Part 2 of Sch 1A deals with who is entitled to VET FEE-HELP assistance and how amounts of such assistance are paid. Clause 40 of Sch 1A outlines the content of Part 2 as follows:

A student may be entitled to VET FEE-HELP assistance for VET units of study if certain requirements are met.

The amount of assistance to which the student may be entitled is based on his or her VET tuition fees for the units, but there is a limit on the total amount of assistance that the student can receive. The assistance is provided to a VET provider to discharge the student’s liability to pay his or her VET tuition fees.

13    Clause 43 sets out the requirements for students’ entitlement to VET FEE-HELP assistance. During 2016, that clause provided, relevantly:

43    Entitlement to VET FEE HELP assistance

(1)    Subject to this clause, a student is entitled to VET FEE-HELP assistance for a VET unit of study if:

(a)    the student meets the citizenship or residency requirements under clause 44; and

(b)    the student’s FEE-HELP balance is greater than zero; and

(c)    the census date for the unit is on or after 1 January 2008; and

(d)    the unit meets the course requirements under clause 45; and

(e)    the unit is, or is to be, undertaken as part of a VET course of study; and

(ea)    the student meets the entry procedure requirements under clause 45B; and

(f)    the student:

(i)    enrols in the unit at least 2 business days before the census date for the unit; and

(ii)    at the end of the census date, remained so enrolled; and

(fa)    in a case where the student is not already entitled to VET FEE-HELP assistance for another VET unit of study forming part of the course—the body with whom the student is enrolled is approved as a VET provider:

(i)    for the day of the enrolment; or

(ii)    if that day falls within a period when the body’s approval as a VET provider is suspended under subclause 36(5)—for a later day because that suspension has ended; and

(fb)    if the VET provider was approved as a VET provider after 2015, the course is:

(i)    one of the qualifying VET courses that enabled paragraph 6(1)(ca) or (1A)(da) to be satisfied for the purposes of that approval; or

(ii)    a qualifying VET course that superseded such a course directly or indirectly without interruption; and

(g)    the student meets the tax file number requirements (see clause 80); and

(h)    the student meets the request for Commonwealth assistance requirements under clause 45C; and

(i)    the student meets any other requirements set out in the VET Guidelines.

…

14    During 2015, cl 43(1) was in slightly different terms. Clause 43(1)(f) then provided:

(f)    the student:

(i)    enrolled in the unit on or before the census date for the unit; and

(ii)    at the end of the census date, remained so enrolled…

15    There is some dispute between the parties as to which version of cl 43 was applicable at particular times, but I do not think it matters for present purposes.

16    Clause 55 provides, and provided at the relevant times:

55    Payments

If a student is entitled to an amount of VET FEE-HELP assistance for a VET unit of study with a VET provider, the Commonwealth must:

(a)    as a benefit to the student, lend to the student the amount of VET FEE-HELP assistance; and

(b)    pay the amount lent to the provider in discharge of the student’s liability to pay his or her VET tuition fee for the unit.

17    The expression “enrolled” is relevantly defined in cl 1 of Sch 1 as follows:

(b)    a person enrolled in a VET course of study includes a person undertaking the VET course of study.

18    The expression “student” is relevantly defined in cl 1 of Sch 1 as follows:

(b)    a person who is enrolled in a VET course of study with a VET provider.

Factual background

19    For the 2015 calendar year, the applicant claimed VET FEE-HELP assistance for students in amounts totalling $51,786,625. For the 2016 calendar year, the applicant claimed assistance for students in amounts totalling $16,075,782. Taking into account advance payments that had been made, the applicants sought payment of a net amount of $34,044,008 for 2015–2016.

20    By letter dated 4 December 2017, Brendan Morling, the manager of the Skills Programs Group in the Department of Education and Training, wrote to the applicant saying:

Notice of Decision in Relation to Payments to a Provider

Please find enclosed a ‘Notice of Decision in Relation to Payments to a Provider’ (Decision).

The Decision presents the Department’s decision in relation to Productivity Partners’ entitlement to payment in further amounts of VET FEE-HELP assistance, following the conclusion of the Department’s investigations to determine Productivity Partners’ entitlement to VET FEE-HELP payments for its 2015 and 2016 enrolments.

For the reasons set out in the Decision, the Department considers that Productivity Partners is entitled to payment of $4,869,113 in further amounts of VET FEE-HELP assistance for the period 2012–2016. Accordingly, a VET FEE-HELP payment of $4,869,113 will be paid under clause 55 Schedule 1A to the Higher Education Support Act 2003 (Cth)…

As stated in the Decision, the Department’s position based on the material before it, is that the students listed at Attachment 1 to the Decision are not entitled to VET FEE-HELP assistance. The total value of the claimed VET FEE-HELP entitlements for those students is $28,969,145. On 10 January 2018, the Department will commence re-crediting the VET FEE-HELP liabilities of the students in Attachment 1 in the Higher Education Information Management System (HEIMS).

21    The effect of the Department’s decision was that the applicant would be paid $29,174,895 less than the $34,044,008 it had claimed for 2015–2016.

22    The letter of 4 December 2017 was accompanied by a document entitled “Notice of Decision in Relation to Payments to a Provider” which provided reasons for the decision. The reasons referred to certain conduct alleged to have been engaged in by the applicant, including targeting vulnerable and disadvantaged persons and offering free laptops to students who remained enrolled after the census date. The Department’s reasons for declining to pay the full amount of assistance claimed were then summarised as follows:

4.3    The Department takes the view that this conduct…appears to be in contravention of Productivity Partners’ statutory obligations. In particular, the Department considers that the conduct gives rise to the risk that the student enrolment numbers on which Productivity Partners has based its claim for payment include persons who are not, and indeed were never bona fide students, and as a consequence, were not entitled to VET FEE-HELP assistance under clause 43 of Schedule 1A.

(Underlining added.)

23    The reasons went on to indicate that in identifying which students were “bona fide students”, the Department had analysed the data as follows:

5.6    …

(a)    4,809 of 6,034 (80%) student enrolments had no activity (no log-ins or assessment attempts);

(b)    of the 4,809 student enrolments with no identified activity, the communication log for 36% of those students contained information which demonstrated two-way communication which related to something other than only the acquisition of a computer and/or their withdrawal from an enrolled course; and

(c)     48,832 of 61,079 enrolments in units of competency had no activity.

24    The reasons concluded:

8.1    On the basis of the information available, the Department is prepared to accept that students who engaged in a course of study are entitled to VET FEE-HELP assistance. In addition, the Department is prepared to accept that students who communicated with Productivity Partners (and those communications did not relate solely to obtaining a laptop or withdrawing from a course of study) may also be entitled to VET FEE­HELP assistance.

8.2    However, the Department remains unsatisfied that the remaining individuals in respect of whom VET FEE-HELP assistance is claimed are entitled to receive VET FEE-HELP assistance, for the reasons identified at paragraph 4. A list of students who are not entitled to VET FEE-HELP assistance is listed at Attachment 1.

25    Following the letter of 4 December 2017, there was further correspondence between the applicant’s solicitors and the Department. This culminated in a letter from Mr Morling dated 16 March 2018 which stated:

The Department has reviewed your client’s further submissions and materials. The Department does not consider that the material provided affects the Department’s position, as expressed in the notice of decision in relation to payments to a provider dated 4 December 2017 (Notice). Accordingly the Department does not propose to revisit the Notice.

...

As outlined in my letter of 20 December 2017, the Department’s proposed re-crediting does not affect your client’s entitlement to the amounts paid as identified in the Notice. Rather, it gives effect to the Department’s view that it cannot be satisfied of the veracity of the enrolments identified in Attachment 1 to the Notice...

Accordingly, the Department proposes to commence re-crediting the individuals identified in Attachment 1 after 16 April 2018.

The application for review

26    Although the applicant’s application primarily seeks review of two decisions alleged to have been made by the Minister, it also seeks review of conduct and a failure to make a decision.

27    The originating application states that the applicant applies to the Court to:

1.    review the decision of the Second Respondent made on 16 March 2018 (the Second Decision) under clause 55 of Schedule 1A to the Higher Education Support Act 2003 (Cth) (HESA) that it would not revisit its Notice of Decision in Relation to Payments to a Provider dated 4 December 2017 (the First Decision), whereby it decided that:

(a)    the students listed in Attachment 1 to the First Decision (Attachment 1 Students) were not entitled to VET FEE-HELP assistance; and

(b)    the Applicant was not entitled to any amounts of VET FEE-HELP assistance for the students listed in Attachment 1.

2.    review the proposed conduct of the Second Respondent set out in paragraph 2 of the Second Notice in Relation to Payments to a Provider dated 16 March 2018 to commence ‘re-crediting’ the VET FEE-HELP liabilities of the Attachment 1 Students (Proposed Conduct).

3.    review the failure of the Second Respondent to decide that the Applicant is entitled to payment, under subclause 55(b) of Schedule 1A to the HESA, in the amount equal to the amount of VET FEE-HELP assistance that the Attachment 1 Students are entitled to.

28    It is unnecessary to set out the applicant’s grounds of review for present purposes, but the orders sought are, relevantly:

1.    An order, pursuant to subsection 16(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), quashing the First and Second Decisions from the date those decisions were made.

2.    An order, pursuant to subsection 16(1)(d) of the ADJR Act and s 39B(1) of the Judiciary Act 1903 (Cth) (Judiciary Act), prohibiting the Respondents from engaging in the Proposed Conduct.

3.    A declaration, pursuant to subsection 16(1)(c) of the ADJR Act, that:

(a)    the Attachment 1 Students are entitled to VET FEE-HELP assistance under clause 43 of schedule 1A to the HESA; and

(b)    the Applicant is entitled to payment, under subclause 55(b) of Schedule 1A to the HESA, in the amount equal to the amount of VET FEE-HELP assistance that the Attachment 1 Students are entitled to.

4.    An order, pursuant to subsection 16(1)(d) of the ADJR Act and s 39B(1) of the Judiciary Act, to compel the First Respondent to (or alternatively, to compel the Second and Third Respondents to procure that the First Respondent) pay to the Applicant the amount equal to the amount of VET FEE-HELP assistance that the Attachment 1 Students are entitled to.

The submissions

29    The respondents rely upon Griffith University v Tang (2005) 221 CLR 99 at [89], where the High Court described two criteria for a decision to be “made…under an enactment” within s 3(1) of the ADJR Act. The respondents concede that it is arguable that the first criterion is satisfied because a decision is impliedly authorised by cl 55 of Sch 1A of the HECS Act. However, the respondents submit that the second criterion—that the decision must itself confer, alter or otherwise affect legal rights or obligations—is not satisfied.

30    The respondents submit that where the Commonwealth does not meet its liability to a VET provider under cl 55 of Sch 1A of the HECS Act, the provider’s remedy is to sue for the unpaid amount in a court of competent jurisdiction. They submit that a decision made by the Commonwealth as to the amount payable under cl 55 has no effect on the provider’s legal rights. The respondents submit that the Commonwealth’s liability under cl 55 does not owe its existence to, nor does enforcement of that liability depend upon, the opinion as to the extent of that liability conveyed in the 4 December 2017 notice.

31    The respondents also submit that relief is not available under s 39B(1) of the Judiciary Act because the decisions do not have any legal effect upon the applicant’s rights and there is no duty that is required to be performed by any officer of the Commonwealth.

32    The respondents further submit that even if the applications are competent, summary judgment should be granted because the application has no reasonable prospects of success. That is because an adequate alternative remedy exists, namely an action for damages commenced in a court of competent jurisdiction.

33    The respondents submit that the “conduct” relied upon by the applicant in this case is merely an adjustment of the students’ FEE-HELP balances in the system maintained by the Department consequent upon the view formed by the Department that the students were not entitled to assistance. They submit that this is not “conduct” within s 6 (1) of the ADJR Act.

34    In response, the applicant relies on the judgment in Peverill v Meir (1990) 95 ALR 401, which is said to be factually close to the present case. In that case, Burchett J considered it was implicitly contemplated by the statutory scheme that the Health Insurance Commission would decide upon what the character of a particular service performed was and whether the requirements for entitlement to a particular fee had been satisfied. His Honour held that a refusal to pay the amounts claimed was a decision of an administrative character which was reviewable under the ADJR Act.

35    The applicant also relies on The Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290 as authority for the proposition that a power to make a determination may be discerned as a matter of implication in a particular statute. In that case, the legislation had not specifically required or authorised the Minister to determine claims for refugee status. However, the High Court read the legislation as impliedly authorising the Minister to make such determinations and held that those determinations were made under an enactment and were reviewable under the ADJR Act.

36    The applicant submits that the Commonwealth decided that the amounts claimed by the applicant were not payable under cl 55 of Sch 1A. It submits that its legal rights are affected at least because its receipt of payments to which it is entitled has been delayed. It submits that the decisions are reviewable under the ADJR Act.

Consideration

37    The respondent’s application is brought under both r 31.05(3) and r 26.01(1) of the Federal Court Rules, but relies primarily on the former. Rule 31.05 provides, relevantly:

31.05    Notice of objection to competency

(1)    A respondent who objects to the competency of an application must, within 14 days after being served with the application, file a notice of objection to competency:

(a)    in accordance with Form 68; and

(b)    that, briefly but specifically, states the grounds of the objection.

(2)    The applicant carries the burden of establishing the competency of an application.

(3)    A respondent may apply to the Court for the question of competency to be heard and determined before the hearing of the application.

…

(5)    If the Court decides that an application is not competent, the application is dismissed.

38    Although the respondents’ application is, in its form, an interlocutory application, r 31.05 (3) and (5) contemplate a final hearing and determination upon the competency of the judicial review application, and not merely summary judgment.

39    I propose to consider the application for review of the decisions of 4 December 2017 and 16 March 2018 under the ADJR Act and then the Judiciary Act, before considering the review of the alleged conduct of the Minister and the Minister’s failure to make a decision.

Review of the decisions under s 5(1) of the ADJR Act

40    Section 5(1) is pivotal to the application of the ADJR Act. The plurality in Griffith University v Tang noted at [41] that three distinct elements are involved in that provision. First, there must be a “decision” to which the ADJR Act applies. Second, there must be an applicant who is “aggrieved” by that decision. Third, there must be reliance upon one or more of the listed grounds of review.

41    Although it is not strictly necessary to address the third element, it may be useful to outline the applicant’s grounds to give context to the proceeding. The decision of 4 December 2017 was based primarily upon a construction of cl 43(1)(f) of Sch 1A of the HECS Act that a “student” who “enrols” and is “enrolled” must be a bona fide student. The decision proceeded on the basis that students who were not bona fide students were not entitled to VET FEE-HELP assistance and that, therefore, the applicant was not entitled to payment under cl 55 of any amounts for such students. However, the applicant proposes to argue that the requirements of cl 43 of Sch 1A are to be read according to their ordinary language and that there is no basis for any implication that students must be bona fide students. The applicant asserts that the 4 December 2017 decision is invalid to the extent that it decided that amounts would not be paid to the applicant for some students because, inter alia, the misconstruction of cl 43 involved in the decision is an error of law. The applicant asserts that to the extent that the decision of 16 March 2008 may have overtaken the earlier decision, it suffers from the same difficulties.

42    The present application is concerned with the first element of s 5(1) of the ADJR Act: that there must be “a decision to which this Act applies”. That expression is defined in s 3(1) to mean “a decision of an administrative character made…under an enactment”. The plurality in Griffith University v Tang noted at [59] that this definition itself involves three elements: the first, “a decision”; the second, “of an administrative character”; and the third, “made … under an enactment”. It was said at [60] that there are dangers involved in failing to look at the definition in s 3(1) other than as a whole. The present application is concerned, however, with whether the decisions of 4 December 2017 and 16 March 2018 satisfy the third of these elements.

43    In Griffith University v Tang, the High Court considered what was meant by the phrase “a decision…made…under an enactment”. The plurality held:

78     ...As noted earlier in these reasons, the presence in the definition in the AD(JR) Act of the words “(whether in the exercise of a discretion or not…)” indicates that the decision be either required or authorised by the enactment. Mayer shows that this requirement or authority may appear sufficiently as a matter of necessary implication. However, whilst this requirement or authority is a necessary condition for the operation of the definition, it is not, by itself, sufficient.

79     The decision so required or authorised must be “of an administrative character”. This element of the definition casts some light on the force to be given by the phrase “under an enactment”. What is it, in the course of administration, that flows from or arises out of the decision taken so as to give that significance which has merited the legislative conferral of a right of judicial review upon those aggrieved?

80     The answer in general terms is the affecting of legal rights and obligations. Do legal rights or duties owe in an immediate sense their existence to the decision, or depend upon the presence of the decision for their enforcement? To adapt what was said by Lehane J in Lewins, does the decision in question derive from the enactment the capacity to affect legal rights and obligations? Are legal rights and obligations affected not under the general law but by virtue of the statute?

....

89     The determination of whether a decision is “made … under an enactment” involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be “made … under an enactment” if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice.

(Underlining added.)

44    The respondents do not contend that the first criterion from [89] of Griffith University v Tang—that the decision must be expressly or impliedly required or authorised by the enactment—is not satisfied. The contentious issue is whether the second criterion is satisfied. The respondents submit that the applicant’s legal rights under cl 55 are unaltered and unaffected by the decisions.

45    It is necessary to begin by identifying the applicant’s “legal rights” that may be altered or affected by the decisions in question. The applicant’s submissions have not directly addressed this issue. However, the originating application seeks an order that the Commonwealth “pay to the Applicant the amount equal to the amount of VET FEE-HELP assistance that the Attachment 1 Students are entitled to”. It may be inferred that the legal right asserted by the applicant is the right to be paid, in respect of each student entitled to assistance, the amount that is payable pursuant to cl 55 of Sch 1A.

46    Clause 43 sets out the criteria for a student’s entitlement to VET FEE-HELP assistance. Clause 55 then provides, relevantly, that if a student is entitled to an amount of VET FEE-HELP assistance, the Commonwealth must: lend the student the amount; and pay the amount to the provider in discharge of the student’s liability to pay his or her VET tuition fee. The effect of the provision is that the Commonwealth is required to pay an amount to an approved VET provider where:

(1)    the student is entitled to an amount of VET FEE-HELP assistance under cl 43;

(2)    the Commonwealth lends the student the amount;

(3)    the student has a liability to an approved provider to pay his or her VET tuition fee; and

(4)    the payment to the provider is in discharge of that liability.

47    It is beyond the scope of consideration of the present application to examine when a person is entitled to VET FEE-HELP assistance or has a liability to pay a VET tuition fee. It is enough to proceed on the basis that where cl 43 is satisfied, cl 55 requires payment of a sum of money by the Commonwealth to a VET provider. The VET provider has a legal right to payment of the amount that is payable under that provision. That is the legal right that must be altered or otherwise affected.

48    As the respondents accept, cl 55 contemplates that someone on behalf of the Commonwealth will make a decision as to whether the Commonwealth is required to pay an amount to a VET provider and what the amount is. Someone will also have to make a decision to actually pay the amount that is assessed as payable. In this case, the decisions of 4 December 2017 and 16 March 2018 were, in effect, that claimed amounts totalling $29,174,895 were not payable by the Commonwealth to the applicant under cl 55, and that those amounts would not be paid.

49    The decisions in question were signed by Mr Morling and expressed to be made by the Department of Education and Training. The originating application asserts that the decisions were made by the Minister. It is by no means clear that Mr Morling acted as delegate of the Minister. Even if he did, a decision by the Minister is not, or is not necessarily, a decision by the Commonwealth. However, in the course of argument, the respondents accepted that Mr Morling’s decisions were decisions of the Commonwealth. The issue is whether those decisions alter or otherwise affect the applicant’s legal right to payment of the amounts payable under cl 55.

50    In Griffith University v Tang at [80], the plurality posed the question, “Do legal rights or duties owe in an immediate sense their existence to the decision, or depend upon the presence of the decision for their enforcement?” The answer to that question (adapted to the present circumstances), will be crucial to determining whether the second criterion is satisfied in the circumstances of this case.

51    The approach taken in Perdikaris v Deputy Commissioner of Taxation (2008) 172 FCR 412 is instructive. There, the primary judge found that the determinations under challenge did not affect the appellant’s legal rights. The Full Court at [19] approved the following passage from the primary judgment:

Were the respondent to bring recovery proceedings against the applicant, the applicant would not be precluded by the determinations from asserting that his employer had made the relevant PAYE deductions or withheld the relevant PAYG amounts, for which he contends. All that the determinations do is deny the applicant the credits which he contends the Commissioner must make or to which he submits that he has become entitled, unless and until he establishes, he carrying the onus of proof, that his employer made the deductions or withheld the payments as claimed.

The Full Court added at [21]:

In proceedings in a court of competent jurisdiction to recover the amount of the assessments, the appellant would be at liberty to prove that his employer made the deductions or withheld the amounts. The Commissioner’s determinations are no barrier to that. The primary judge correctly upheld the Commissioner’s objection to competency.

52    Perdikaris demonstrates that it is necessary to consider whether the decisions in question have any effect upon the entitlement of the applicant to enforce its legal right to payment of any amounts payable under cl 55.

53    The HECS Act does not expressly provide a remedy for the enforcement of the Commonwealth’s liability. However, in Mallinson v The Scottish Australian Investment Company Limited (1920) 28 CLR 66, the High Court stated the applicable rule at 70:

“Wherever an Act of Parliament creates a duty or obligation to pay money, an action will lie for its recovery, unless the Act contains some provision to the contrary”; and where the amount is liquidated the action of debt is appropriate.

[See also Commonwealth v SCI Operations Pty Ltd (1998) 192 CLR 285 at [65]; Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290 at [83]; Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd (2008) 237 CLR 473 at [51]; Pape v Commissioner of Taxation (2009) 257 ALR 1 at [38], [140], [452]].

54    As there is no statutory provision to the contrary, an approved provider may recover an amount payable under cl 55 as a debt in a court of competent jurisdiction.

55    If a student is entitled to assistance under cl 43 (and its other requirements are satisfied), an amount is payable by the Commonwealth to the VET provider under cl 55. The applicant’s legal right to payment owes its existence to cl 55 and depends solely upon whether the requirements of that provision are met. That right is not conditioned upon the making of any favourable decision by the Commonwealth, nor is the right denied by the making of any unfavourable decision. The decisions made have no effect upon the applicant’s right to sue for any debt that arises under cl 55. It remains open to the applicant to enforce its legal right through proceedings in a court of competent jurisdiction.

56    The applicant submits that the decisions affect its legal right because payment of the amounts it claims to be entitled to will be delayed until the conclusion of legal proceedings for the enforcement of that right. However, there is an element of circularity in that argument. The argument assumes that the applicant has a legal right to payment of particular amounts that is capable of being affected, when that is the very matter of controversy. In my opinion, the second criterion in Griffith University v Tang does not operate upon such an assumption. Further, applying the reasoning in Perdikaris, it is not enough that the effect of the decisions is to deny the applicant payment until it establishes its entitlement in a court.

57    The cases relied upon by the applicant, Minister for Immigration and Ethnic Affairs v Mayer and Peverill v Meir, are of no assistance in this case. Those cases were only concerned with the first criterion later identified in Griffith University v Tang, and not the second.

58    The respondents’ submission that the decisions do not alter or otherwise affect the applicant’s legal rights must be accepted. Therefore, there is no “decision...made…under an enactment” within s 3(1) and no “decision to which this Act applies” within s 5(1) of the ADJR Act. The application for review of the decisions under the ADJR Act is incompetent.

Review of the decisions under s 39B(1) of the Judiciary Act

59    The applicant’s originating application also claims relief in relation to the decisions under s 39B(1) of the Judiciary Act. That provision confers jurisdiction on the Court “with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth”.

60    The relief sought in this case is in the nature of mandamus. The applicant seeks orders:

(1)    compelling the Commonwealth to pay particular amounts to the applicant; or, alternatively,

(2)    compelling the Minister or the third respondent, the Secretary, Department of Education and Training, to procure the Commonwealth to pay those amounts.

61    An immediate problem with the first of the alternative orders is that the writ of mandamus is sought against the Commonwealth itself, not an officer of the Commonwealth. As a writ under s 39B(1) must be sought against an officer of the Commonwealth, the Court does not have jurisdiction to grant the relief sought.

62    The second of the alternative orders does seek a writ of mandamus against officers of the Commonwealth, namely the Minister and the Secretary. Mandamus issues to correct an actual or constructive failure to carry out a duty imposed on an officer by law: Re Heerey; Ex Parte Heinrich (2001) 185 ALR 106 at [20]. Clause 55 imposes an obligation upon the Commonwealth, not the Minister or the Secretary. The applicant has not identified any public duty that is unperformed by the Minister or the Secretary. Neither has the applicant pointed to any statutory provision under which the Minister or the Secretary can be compelled to “procure” the Commonwealth to pay the amounts claimed to be payable under cl 55.

63    Therefore, mandamus is not available against the Minister or the Secretary. The application under s 39B(1) of the Judiciary Act in respect of the decisions cannot succeed.

64    The originating application does not expressly seek a writ of certiorari. However, I will assume that it does in case the application may be construed as seeking such relief. For certiorari to issue, there must be a decision by an officer of the Commonwealth that has a discernible or apparent legal effect upon rights: Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 at 159. I have already concluded that the decisions of 4 December 2017 and 16 March 2018 have no such effect. Accordingly, certiorari cannot issue.

Review of conduct under s 6(1) of the ADJR Act and s 39B(1) of the Judiciary Act

65    The originating application seeks review of “the proposed conduct” of the Minister described in the letter of 16 March 2018, namely “re-crediting” the VET FEE-HELP liabilities of the students determined to not be bona fide students. The letter of 4 December 2017 explained that the Department would commence re-crediting the VET FEE-HELP liabilities of such students “in the Higher Education Information Management Systems (HEIMS)”.

66    An affidavit of Kathryn Woodall, a public servant employed in the Department of Education and Training, explains that HEIMS is an online data management system that, inter alia, records a running total of each student’s VET FEE-HELP balance. If it is determined that a student was not entitled to VET FEE-HELP assistance for a particular unit of study, then the student’s FEE-HELP balance is “re-credited”. The Australian Taxation Office then remits (reduces) the student’s debt to that extent.

67    Accordingly, re-crediting the VET FEE-HELP liabilities will provide a benefit to the relevant students because their debts to the Commonwealth will be reduced. That may raise an issue about whether the students ought to have been served, since the orders sought by the applicant may adversely affect their interests. Leaving that aside, it may be observed that the re-crediting will cause no detriment to the applicant. That is because the liability of the Commonwealth to pay a provider under cl 55 is predicated upon the entitlement of a student to an amount of VET FEE-HELP, and whether the Commonwealth records or treats the student as having a debt is irrelevant to the existence of that liability.

68    In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Mason CJ said at 342 that, “A challenge to conduct is an attack upon the proceedings engaged in before the making of the decision”.

69    In Commissioner of Australian Federal Police v Propend Finance Pty Limited (1997) 188 CLR 501, Gummow J at 562 noted that s 6(1) of the ADJR Act is concerned with review of conduct engaged in “for the purpose of making a decision to which this Act applies” and, accordingly, the conduct must be anterior, rather than posterior, to the relevant decision.

70    The “proposed conduct” challenged by the applicant in this case is an adjustment of students’ FEE-HELP balances in the database maintained by the Department. That action is consequent upon decisions that the applicant is not entitled to payment in respect of particular students because those students are not entitled to VET FEE-HELP assistance. I have already concluded that neither of the decisions is “a decision to which this Act applies” within s 6(1) of the ADJR Act. Even if that requirement were satisfied, the proposed conduct is not “for the purpose of making” the decisions, being anterior to them.

71    The application for review of the proposed conduct under s 6(1) of the ADJR Act is therefore incompetent.

72    The application for review also seeks a writ of prohibition under s 39B(1) of the Judiciary Act prohibiting the respondents from engaging in the proposed conduct of re-crediting the students’ balances. Even assuming that the decisions of 7 December 2017 and 16 March 2018 involve jurisdictional error, a writ of prohibition would not issue in respect of the proposed conduct as a matter of discretion, because the conduct would not adversely affect the applicant’s interests. The application in respect of the proposed conduct, therefore, cannot succeed.

Review of the Minister’s failure to make a decision under s 7(1) of the ADJR Act

73    The originating application seeks review of “the failure of the [Minister] to decide” that the applicant is entitled to payment of the amounts claimed by the applicant. This claim appears to rely upon s 7(1) of the ADJR Act. However, that provision, in terms, only applies “Where…a person has a duty to make a decision to which this Act applies”. I have found that there is no such decision.

74    Therefore, the application is incompetent to the extent that it relies on s 7(1) of the ADJR Act.

Conclusion

75    For the reasons I have given, none of the claims in the originating application for judicial review can succeed.

76    The originating application must be dismissed. The applicant should pay the respondents’ costs of the proceeding.

Associate:    

Dated:    18 October 2018