FEDERAL COURT OF AUSTRALIA
Australian Skills Quality Authority v Brighton Pacific Pty Ltd [2020] FCA 617
ORDERS
AUSTRALIAN SKILLS QUALITY AUTHORITY Applicant | ||
AND: | First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The parties provide joint draft case management orders within seven days in respect of further submissions concerning costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
COLLIER J:
1 Before the Court is an appeal by the Australian Skills Quality Authority (ASQA) from the decision of the second respondent, the Administrative Appeals Tribunal (Tribunal), in Brighton Pacific Pty Ltd and Australian Skills Quality Authority [2019] AATA 364. In that decision the Tribunal:
found in favour of the first respondent (Brighton Pacific) and set aside the decisions of ASQA cancelling:
• the registration of Brighton Pacific under the National Vocational Education and Training Regulator Act 2011 (Cth) (NVR Act) pursuant to s 39 of the NVR Act; and
• the registration of Brighton Pacific under the Education Services for Overseas Students Act 2000 (Cth) (ESOS Act) pursuant to ss 83(3) and 93(4) of the ESOS Act; and
affirmed ASQA’s decision to refuse the application of Brighton Pacific to change its Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) registration.
2 The Tribunal also imposed a limit of 3 years on the respective registrations, and a number of conditions on Brighton Pacific aimed at ensuring future compliance with the provisions of the NVR Act and the ESOS Act.
3 The third decision of ASQA, namely to refuse an application by Brighton Pacific to change its CRICOS registration, subsequently affirmed by the Tribunal, was not the subject of the current proceedings before me and I make no further reference to it.
background
4 The Tribunal summarised relevant background in its reasons for decision, which summary I gratefully adopt as follows:
Brighton Pacific was registered as a registered training organisation under the NVR Act on 4 May 2015 and traded under the name of Australia Institute of Business & Technology.
Its Chief Executive Officer at all material times was Ms Fiona Kee.
Brighton Pacific was registered pursuant to the ESOS Act on 29 July 2015. It marketed its offerings via a shared website with its related RTO Australian Institute of Business & Technology — International Pty Ltd (AIBTI), which obtained registration in 2017.
Brighton Pacific also had a third party agreement with AIBTI for AIBTI to deliver training and assessment for some training products. Its courses were offered across four locations, two in New South Wales (at Blacktown and Ultimo), one in Queensland (in Upper Mount Gravatt) and one in Tasmania (in Hobart).
Brighton Pacific had approximately 2500 students enrolled and undertaking courses, and employed some 160 people.
As at 11 September 2018, Brighton Pacific offered more than 70 courses within the scope of its VET registration, including two English Language Intensive Courses for Overseas Students (ELICOS) courses and under its CRICOS registration was able to offer 91 courses to nearly 3500 students.
The courses spanned a range of offerings including business, health, sciences, community services, information technology, technical sciences, hospitality and aviation as well as an English language course.
On 28 May 2018, ASQA issued a compulsory notice pursuant to s 26 of the NVR Act requiring Brighton Pacific to provide information as to whether it was complying or had complied with its obligations under the NVR Act. This information was subsequently provided on 15 June 2018.
On 30 July 2018, ASQA informed Brighton Pacific of its intention to conduct an audit. A site audit was conducted between 7–10 August 2018 across two of Brighton Pacific’s campuses.
In addition, ASQA undertook a review of Provider Registration and International Student Management Systems (PRISMS) data pertaining to Brighton Pacific and its overseas student enrolments during the period of 25 September 2017 and 4 October 2018.
Brighton Pacific was advised during the site audit and again on 3 September 2018 that ASQA had found non‐compliances, and that Brighton Pacific would have 20 working days to respond once it received a notification letter from ASQA.
The detailed audit report and annexures was finalised on 12 October 2018. ASQA advised Brighton Pacific on 16 October 2018 that it had made a preliminary decision based on the non‐compliances identified by the audit.
ASQA invited Brighton Pacific to submit a written response and any additional evidence by 14 November 2018.
The audit identified that Brighton Pacific was not compliant with a number of regulatory requirements pertaining to its obligations both as an RTO and as a provider of education to overseas students.
The time for a response by Brighton Pacific was extended to 21 November 2018.
On 22 November 2018 Brighton Pacific submitted its response. ASQA analysed the response and determined that Brighton Pacific had not provided evidence to demonstrate and/or conclusively confirm that it was compliant in a number of areas.
5 Materially by separate letters dated 19 February 2019 (collectively, the “Decision Letters”), ASQA notified Brighton Pacific of the following decisions:
a decision to cancel Brighton Pacific’s registration under section 39 of NVR Act; and
a decision to cancel Brighton Pacific’s registration for all courses at all locations under section 83(3) and 93(4) of the ESOS Act.
6 The Decision Letter in respect of ASQA’s decision to cancel Brighton Pacific’s NVR Act registration stated as follows:
…
Dear Ms Kee
Re: Brighton Pacific Pty Ltd: Notice of decision to cancel NVR Act registration
On 16 October 2018, the Australian Skills Quality Authority (ASQA) gave you notice under section 37(1)(a) of the National Vocational Education and Training Regulator Act 2011 (the NVR Act) that it intended to make a decision to cancel your registration under section 39. That notice also, in accordance with section 37(1)(b), invited you to give ASQA a written response no later than 14 November 2018.
On 8 November 2018, ASQA received your request for an extension to provide a written response. An extension was approved until the 21 November 2018.
On 22 November 2018, ASQA received your response, ASQA has considered your response. In accordance with section 37(2) of the NVR Act, ASQA hereby gives you notice that it has made a decision to cancel your registration under section 39 with effect from 26 March 2019.
Reason for the Decision
Review and analysis of Brighton Pacific Pty Ltd's written response to the 'Notice of audit non−compliance and intention to make a decision' sent to the organisation on 16 October 2018 indicates that the provider has taken action to address some aspects of the non−compliance following the compliance monitoring audit of the organisation. However, analysis of the evidence provided also indicates that the provider remains non−compliant with the following requirements.
• Standards for Registered Training Organisations 2015 (Standards for RTOs) − Clauses 1.1, 1.3, 1.8, 1.13, 1.14, 1.16, 1.18, 3.1, 4.1, 8.5
• National Code of Practice for Providers of Education and Training to Overseas Students 2018 (National Code) − Standards 1. 1, 1.2, 11.2
• ELICOS Standards 2018 − P5.1, P6.7.
Specifically, the additional information and evidence provided failed to demonstrate and/or conclusively confirm that the provider is compliant in the following areas:
• Ensuring that all information disseminated via the RTO’s website about its course offerings (which is also used by its education agents for marketing purposes) is accurate and factual in all cases; and that remedial action has been undertaken to identify and address the impact, the non−compliance identified at audit may have caused to current students enrolled in the training products where non−compliance was identified who received marketing material/information that was not accurate and factual (non−compliance aligns with Clause 4.1 of the Standards for RTOs, and Standards 1.1 and 1.2 of the National Code 2018)
• Ensuring that its documented training and assessment strategies for the sampled training products fully and accurately describe the provider's arrangements for the delivery of training and assessment consistent with actual practice, and clearly demonstrate that the RTO’s training and assessment strategies and practice enable each learner to meet the requirements for each unit of competency (non−compliance aligns with Clause 1.1)
• Ensuring that the provider has, for the sampled training products, sufficient trainers and assessors (who meet the requirements of the Standards), learning and assessment resources, facilities and equipment, proportionate to the number of students enrolled at any time, the mode of delivery, location of delivery, and the provider's training and assessment strategies (non−compliance aligns to Clause 1.3 of the Standards for RTOs, and Standard 11.2 of the National Code 2018)
• Ensuring that the provider's use of educational resources for the purpose of delivering ELICOS courses addresses individual and specific student needs, and reflects new developments in TESOL theory and practice (non−compliance aligns to Standard P5.1 of the ELICOS Standards 2018)
• Implementing an assessment system that ensures that the assessment complies with the requirements of the relevant training package and is conducted in accordance with the Principles of Assessment and Rules of Evidence; and completing remedial action to address the impact the non−compliance may have caused to current and former students who were enrolled in the sampled training products who were assessed in a manner that did not meet the requirements of Clause 1.8 (non−compliance aligns to Clause 1.8 of the Standards for RTOs)
• Ensuring that all of its nominated trainers and assessors for the sampled training products have or had vocational competencies at least to the level being delivered and assessed; current industry skills directly relevant to the training and assessment they are providing or have provided; and current knowledge and skills in vocational training and learning that informs their training and assessment (non−compliance aligns to Clause 1.13 of the Standards for RTOs)
• Ensuring that all of its nominated trainers and assessors delivering the sampled training products hold the training and assessment qualification specified in Item 1 or Item 2 or Item 3 of Schedule 1 to the Standards (non−compliance aligns to Clause 1.14 of the Standards for RTOs)
• Ensuring that all of its trainers and assessors delivering or who have delivered the sampled training products have or will undertake professional development in the fields of the knowledge and practice of vocational training, learning and assessment including competency based training and assessment (noncompliance aligns to Clause 1.16 of the Standards for RTOs)
• Ensuring that all requirements pertaining to individuals working under supervision of a trainer have been met (non−compliance aligns to Clauses 1.18 of the Standards for RTOs)
• Ensuring that it verifies the qualifications of all of its ELICOS teachers (non−compliance aligns to Standard P6.7 of the ELICOS Standards 2018)
• Ensuing that its assessment systems meet the requirements of Clause 1.8(a) of the Standards for RTOs with respect to the sampled training products, and thereby guarantees that AQF certification documentation has and will only be issued to a learner who has been assessed as meeting all of the requirements of the relevant training product as specified in the training package (non−compliance aligns to Clause 3.1 of the Standards for RTOs 2015)
• Ensuring that the provider complies with all Commonwealth, State and Territory legislation and regulatory requirements relevant to its operations (non−compliance aligns to Clause 8.5 of the Standards for RTOs), in particular, the provider's reporting obligations under the Education Services for Overseas Students Act 2000.
…
7 The Decision Letter in respect of ASQA’s decision to cancel Brighton Pacific’s ESOS Act registration stated as follows:
…
Dear Ms Kee
Re: Notice of decision to cancel registered provider's registration for all courses at all locations
On 16 October 2018, and in accordance with the provisions of sections 83(3) and 93(2) of the Education Services for Overseas Students Act 2000 (the ESOS Act), the Australian Skills Quality Authority (ASQA) gave your organisation notice that it proposed to cancel your organisation's registration. The notice also invited your organisation to provide ASQA with a written response no later than 14 November 2018.
On 8 November 2018, ASQA received your request for an extension to provide a written response. An extension was approved until the 21 November 2018.
On 22 November 2018, ASQA received your organisation's response. ASQA has considered the response and in accordance with section 93(4) of the ESOS Act, ASQA hereby gives you notice that it has made a decision to cancel your organisation's registration effective 26 March 2019.
Reason for the Decision
Review and analysis of Brighton Pacific Pty Ltd's written response to the 'Notice of audit non−compliance and intention to make a decision' sent to the organisation on 16 October 2018 indicates that the provider has taken action to address some aspects of the non−compliance following the compliance monitoring audit of the organisation. However, analysis of the evidence provided also indicates that the provider remains non−compliant with the following requirements.
• Standards for Registered Training Organisations 2015 (Standards for RTOs) − Clauses 1.1, 1.3, 1.8, 1.13, 1.14, 1.16, 1.18, 3.1, 4.1, 8.5
• National Code of Practice for Providers of Education and Training to Overseas Students 2018 (National Code) Standards 1. 1, 1.2, 11.2
• ELICOS Standards 2018 − P5,1, P6.7.
…
8 While ASQA’s decisions were based on failures by Brighton Pacific to comply with the regulatory standards contained in the Standards for Registered Training Organisations 2015, the National Code of Practice for Providers of Education and Training to Overseas Students 2018 (National Code) and the ELICOS Standards 2018, the Decision Letters did not explain those non‐compliances in detail. Details of non‐compliance were in a document dated 25 January 2019 entitled “Audit report: Brighton Pacific Pty Ltd”.
9 Prior to ASQA’s cancellation decisions of 19 February 2019, the periods of Brighton Pacific’s registrations under the respective Acts were:
Under the NVR Act – from 4 May 2015 until 3 May 2022; and
Under the ESOS Act – from 29 July 2015 until 28 July 2020.
10 Further, as was specifically stated in the Decision Letters, the decisions of ASQA to cancel Brighton Pacific’s registration under the NVR Act and the ESOS Act took effect from 26 March 2019.
decision of the tribunal
11 On 19 February 2019 Brighton Pacific lodged with the Tribunal an application for review and an application for stay of the decisions of ASQA. The Tribunal granted a conditional stay.
12 The Tribunal identified the principal issue before it as whether Brighton Pacific should be registered under the NVR Act and the ESOS Act.
13 Before the Tribunal, Brighton Pacific submitted, in summary, that:
The decisions of ASQA to cancel the various registrations held by Brighton Pacific was made on the basis of non-compliance by Brighton Pacific found in the final audit report, however a number of non-compliance findings were made in error;
Brighton Pacific had remedied a number of legitimate non-compliances found and introduced systems to prevent future reoccurrences of non-compliance;
The findings of non-compliance at the time of the audit must be viewed in context, namely that many of the non-compliances identified were minor, the audit only related to a small proportion of the Brighton Pacific’s courses, and available evidence suggested that non-audited courses were compliant;
Of the more serious non-compliances, only one involved dishonesty or misconduct concerning one student, and it was an isolated instance under investigation;
The more serious non-compliances had no adverse impact on students as the evidence indicated a high degree of student satisfaction with the courses; and
In these circumstances cancellation of registration would be disproportionate and unduly severe.
14 The submissions of ASQA at the Tribunal were, in summary:
In light of the objects of the NVR Act and the ESOS Act and the admitted breaches of Brighton Pacific, cancellation was the only suitable sanction because any other sanction risked sending a message that Australia tolerated actions by a VET education provider which were inconsistent with the migration law, harmed students and involved providing inadequate standards of training and assessment;
The number of breaches by Brighton Pacific was concerning and indicated an absence of preventative systems for non-compliance. Brighton Pacific should have engaged an expert to assist it in developing compliance practices following the audit. In the absence of those measures, ASQA was not confident that Brighton Pacific would be compliant in the future.
There had also been frequent breaches by Brighton Pacific relating to the requirement that education providers provide certain information concerning international students to the government via PRISMS. The provision of that information enabled the Minister to determine students’ compliance with visa conditions and the education provider’s compliance with the ESOS Act. Some breaches of obligations in respect of PRISMS constituted offences, and continued even after the audits and after staff had undertaken further training.
Brighton Pacific did not have a proper student complaint handling system and processes, and took no action to enforce its own policies with respect to the conduct of trainers.
The scheme of the relevant legislation was self-regulation by the education providers. It was not the role of ASQA to be the compliance system of such providers.
15 At [26] the Tribunal noted that Counsel for ASQA had identified breaches in relation to PRISMS as the most serious conduct engaged in by Brighton Pacific. Relevantly the Tribunal continued:
PRISMS
27. As a CRICOS provider, the applicant is required to submit certain information about overseas students to the Australian Government via PRISMS. This secure student management site allows for the issuing of ‘Confirmation of Enrolments’ (CoE) for international students and requires an education provider to report any changes in course enrolment. This allows for government departments, such as the Minister for Home Affairs, to monitor both the student’s compliance with their visa conditions and the provider’s compliance with the ESOS Act.
16 The Tribunal identified ss 19, 46F, 47H and 108 of the ESOS Act as relevant, and cll 8.2, 8.3 and 8.5 of the National Code as relevant.
17 In relation to the final audit report concerning PRISMS: at [29] the Tribunal noted that, since 2016, Brighton Pacific’s authorised users of PRISMS had entered information into PRISMS in excess of 67,000 times. Within this volume of material, ASQA had found Brighton Pacific was in breach of the following:
116 occasions of a failure to report information within the timeframe required by ss 119(1)(c) to 119(1)(f) of the ESOS Act, or failure to report the outcome of a provider default under s 46F of the ESOS Act; and
1,775 occasions where Brighton Pacific failed to give notice via PRISMS of a student default under s 47H of the ESOS Act.
18 In relation to reporting information: ASQA found that Brighton Pacific had failed to report information within the timeframes required by s 19(1)(c)-(f) of the ESOS Act. The Tribunal noted ASQA’s findings that:
On 69 occasions when Brighton Pacific provided through PRISMS information about students who did not commence their course on the commencement date, the information was out of time (and therefore in breach of s 19(1)(c));
On 7 occasions when Brighton Pacific provided through PRISMS information about students who had terminated their studies, this information was out of time and in breach of s 19(1)(d);
On 30 occasions where Brighton Pacific provided through PRISMS information about students’ course identity and duration, the information was out of time and in breach of s 19(1)(e);
On 7 occasions where Brighton Pacific provided through PRISMS information about the deferral or suspension of students’ Confirmation of Enrolments, the information was out of time and in breach of s 19(1)(f).
19 In respect of these reporting breaches the Tribunal observed:
31. The evidence before the Tribunal reflects that the reason behind these breaches was a deficiency in the applicant’s processes at the time, which accounted for 83 of these breaches, and the remaining 33 occasions resulted from ‘human error’. The applicant has subsequently updated all identified inaccuracies in PRISMS.
32. The Tribunal notes that the applicant has now implemented changes to their processes to reduce the risk of human errors recurring and ensure future compliance, including additional training provided to members of the Enrolment Team who have access to PRISMS. I find the applicant has openly acknowledged its short comings in this area and has taken genuine steps to ensure that its personnel accurately record student data in PRISMS in the timeframes required under the ESOS Act.
33. In relation to the applicant’s failure to report the outcome of a provider default, the respondent analysed the applicant’s PRISMS data relating to all student course variations for the period of 26 September 2016 to 4 October 2018. Within this period, the respondent found 3 occasions where a student’s CoE was cancelled for the reason ‘provider unable to deliver course’.
34. Pursuant to section 46F of the ESOS Act, the applicant was required to notify the outcome of their discharge of any obligations in respect of these three overseas students. However, in all three instances, the reason for the cancellation of the CoE entry into PRISMS was a ‘human error’, and evidence was provided that in each case the reason was not ‘provider unable to deliver course’, as had originally been entered into PRISMS. The applicant has subsequently updated PRISMS to address all identified inaccuracies.
(Emphasis added, footnotes omitted.)
20 In relation to giving notice via PRISMS of a student default: ASQA stated that on 4 September 2018 it had analysed Confirmation of Enrolment data in PRISMS of Brighton Pacific’s enrolments created in the period between 4 October 2017 and 4 October 2018 and had found 1,775 possible breaches of s 47H of the ESOS Act. In particular, at [36] the Tribunal noted that Brighton Pacific’s Head of Finance had cancelled enrolments of overseas students whose visas were refused, the tuition fees of the students were refunded, however the correct notices of Student Default pursuant to s 47H were not given. The Tribunal noted further that Brighton Pacific had investigated, acknowledged the absence of proper quality controls, and had implemented new processes to ensure their obligations under s 47H were satisfied.
21 In relation to the authorised users of PRISMS: Brighton Pacific’s finance manager, Mr Branjerdporn, had resigned in December 2018, however records indicated that he was paid and continued as an employee until 3 February 2019. The Tribunal also found:
It appeared that Mr Branjerdporn had accessed PRISMS in January 2019 in the course of undertaking brief work for Brighton Pacific;
The deactivation of his PRISMS account had only occurred in June 2019;
Brighton Pacific should have given notice when Mr Branjerdporn ceased to be an employee on 3 February 2019; and
There had been a breach of the Monitoring Student Attendance and Academic Progress Policy and Procedures Conditions of Access and Use which provided:
The Provider must notify the Department of Education and training immediately if an Authorised User ceases employment with the Provider or is no longer authorised to use PRISMS.
22 The Tribunal at [42]-[48] examination in detail the evidence of Ms Owen, a Senior Policy Officer at ASQA, noting that her findings were contained in the audit report finalised on 12 October 2018. Ms Owen had reviewed data contained in PRISMS with respect to Brighton Pacific and its reporting of student course variations. The Tribunal noted, in summary:
Ms Owen had identified 47 occasions between 1 January 2017 and 24 May 2019 which were in breach of Brighton Pacific’s reporting obligations under s 19(1)(e) of the ESOS Act, and therefore involved an offence under s 108 of the ESOS Act.
Ms Owen had described processes of Brighton Pacific whereby it had issued a new Confirmation of Enrolment to students whose Confirmation of Enrolment date had passed, as “masking” the student course variation, and in breach of s 19 of the ESOS Act.
Brighton Pacific submitted that this alleged “masking” was in accordance with advice provided by the PRISMS help desk.
There was no evidence that the “masking” was deliberate, however the practical effect of offering new courses as opposed to extensions was that the Department of Home Affairs was not made aware of the students’ lack of course progression, including enforcing visa consequences.
Ms Owen had identified a further 59 occasions between 2 February 2019 and 24 May 2019 on which Brighton Pacific was alleged to have breached s 19(1)(c)-(f) of the ESOS Act by failing to provide information within the prescribed 31 day period, however these appeared to have been dealt with in the Third Compliance Report.
23 In relation to student addresses: the Tribunal noted s 21 of the ESOS Act which required registered providers to keep records of students, and in particular s 21(2A) which required registered providers to have a procedure to ensure that, at least every 6 months while the student remained an accepted student, the enrolment details were confirmed or updated. Contravention of s 21 was an offence of strict liability. The Tribunal had regard to evidence of Ms Kee and was satisfied that while Brighton Pacific had a procedure which attempted to comply with s 21(2A) (at [52]), nonetheless the Tribunal had concerns that that procedure was only a reminder to students of their obligation to inform the provider of any change to their residential address rather than a confirmation as required by the section.
24 In discussing the consequences that flowed from the breaches of the ESOS Act, the Tribunal noted that it was imperative for course providers to ensure their obligations under the ESOS Act were met to enable Australia to adhere to its migration laws and policy. At [63] of its reasons, the Tribunal continued:
However no material has been put before this Tribunal during this hearing to show that the failures identified above were deliberate or resulted in abuse of the complex system established to regulate migration.
25 The Tribunal considered evidence given by Ms Kee and found that she was a credible witness. The Tribunal also considered other instances of non-compliance, including in respect of two schools administered by Brighton Pacific, and feedback by students. Importantly, the Tribunal then observed as follows:
102. The respondent is charged with a difficult task. It must protect the reputation of the education sector and in doing that abide by and apply a set of Standards. It is not just a case of ensuring that one provider complies with the Standards across one subject. It must ensure that thousands of providers comply with Standards across a great many subjects. This task is made more difficult because there is a need to ensure a consistency of standards across a range of different providers. The aim is to ensure that the certificate from provider A in respect of subject X is of the same level as the certificate from provider B in respect of subject X. That requires a rigorous application of the Standards by the respondent. The respondent relies on the providers to self-regulate. It cannot possibly do otherwise. What must be a matter of concern, and is of concern in this matter, is a belief that a provider is responsible for systemic non-compliance. Perhaps its greatest concern is that it believes that Ms Kee does not know what she doesn’t know. It refers to her as having no insight into the deficiencies in her system and points to the fact that she has not engaged an expert to assist her in developing more compliant systems and practices.
103. I am satisfied that Ms Kee is an intelligent woman and that she endeavours to grapple with a complex system. Her business has grown exponentially over recent years. It may well be that in some areas she is not aware of what she does not know but it is also clear that she is prepared to obtain expert assistance. She must do so.
104. I am satisfied that at the time of the initial audit and of the final audit there were significant failures to comply with the standards. I take into account the fact that on previous audits the applicant had essentially been found to be compliant. The applicant had a very rapid expansion of its business. It probably expanded beyond its ability to ensure that its compliance with Standards continued to a satisfactory level. I am however satisfied that Ms Kee has tried very hard to rectify issues that have been identified, and taken steps to ensure compliance for the future.
105. I will not have regard to the fact that my decision in this matter will have a substantial financial impact on the applicant. My concern relates to the maintenance of integrity in the system, maintenance of standards and maintenance of reputation. I take into account the extent of the non-compliance with the Standards, and the steps taken to remedy the failures identified. Standard 2 requires that the organisation systematically monitors its training and assessment strategies and practices and systematically evaluates and uses the outcomes of the evaluation is [sic] to improve its training and assessment strategies and practices. There seems to have been a degree of laxity in compliance with some Standards. Ms Kee has taken steps to ensure future compliance. In the area of marketing and recruitment the applicant has had its marketing department undertake training to improve services. It has put in place processes to ensure that materials are regularly reviewed and obsolete materials are not unintentionally used. In the field of training and assessment the applicant has conducted a review of its process and adopted a checklist to ensure that reviews are comprehensive. In short, it has, as a result of the audit process and of these proceedings, undertaken substantial work to ensure compliance with the Standards.
106. I respectfully agree with the statement by Prof Braithwaite in her 2018 review of ASQA’s legislation when she said:
As a regulator [ASQA’s] role is to motivate RTOs to reflect on their performance, what they might do better and how they might go about improving their performance. Recommendations in this review favour continuous improvement over mandating quality standards that all RTOs must achieve. Ultimately, the way ASQA should regulate for quality (as opposed to sufficiency) is to look at how well RTOs go about setting their own higher standards, checking if such standards are met, motivating through praise and encouragement and support when they have achieved improvement, and advising on options when they have not.
107. I am not satisfied that cancellation of registration is the correct or preferable decision. As submitted by the respondent, and undoubtedly correct, my concern is to ensure the maintenance of high and consistent standards and to protect the reputation of the nation as a provider of first class education to Australian and overseas students. The matters raised by the respondent do not involve dishonesty or any kind of fraudulent conduct, not to say that that is the relevant test. It is not. The applicant has shown insight and has shown itself ready and willing to correct failings identified and to implement a system to ensure that its compliance is improved by the employment of more staff to monitor compliance. The applicant should be given an opportunity to perform at a higher standard than it has to date. To ensure that happens, its registration should be renewed for a limited period. Both parties have suggested some conditions that might be imposed on registration. I take those into account. Furthermore, its application to change its CRICOS registration to extend to further courses should be refused, at least until after its next audit. It has not performed at a sufficiently high standard to justify allowing it to offer more courses.
26 The Tribunal’s decision was as follows:
108. The Tribunal sets aside the decision to cancel the applicant’s registration under section 39 of NVR Act and directs that the renewal of registration for a period of three years be subject to conditions set out hereunder.
109. The Tribunal sets aside the decision to cancel the applicant’s registration for all courses at all locations under section 83(3) and 93(4) of the ESOS Act and directs that the renewal of registration for a period of three years be subject to conditions set out hereunder.
110. The Tribunal affirms the decision to refuse the applicant’s application to change its CRICOS registration.
27 The conditions referred to at [109] were as follows:
1. Condition 1: PRISMS Compliance
(a) By 30 June and 31 December of each year during its registration under the ESOS Act, Brighton must cause all Brighton personnel with access to Provider Registration and International Student Management System (PRISMS) to receive external training in relation to Brighton’s obligations under the Education Services for Overseas Students Act 2000 (ESOS Act) and National Code of Practice for Providers of Education and Training to Overseas Students 2018 (National Code) (External Training Requirement).
(b) By 28 February of each year during its registration under ESOS Act, Brighton must produce a report (PRISMS Compliance Report), capable of being produced to ASQA upon request after that date:
(i) providing evidence that the External Training Requirement has been met;
(ii) providing evidence that Brighton has complied with its obligations to report information in PRISMS under the ESOS Act and National Code;
(iii) providing evidence that the PRISMS Compliance Report has been reviewed by an independent person who is suitably experienced in the use of PRISMS and compliance with reporting obligations in PRISMS under the ESOS Act and National Code.
2. Condition 2: Review of Assessment System to reduce occurrence of alleged plagiarism
(a) By 31 October 2019, Brighton is to approve an Academic Misconduct Policy that applies to all of its students (Academic Misconduct Policy).
(b) By 31 October 2019, Brighton must cause an independent review to be undertaken of a sample of its assessments across all courses with active enrolments, requesting any recommended changes to those assessments to reduce the risk of the occurrence of alleged academic misconduct (including plagiarism) under the Academic Misconduct Policy (Assessment Design Review).
(c) The Assessment Design Review must be undertaken by an independent person who is suitably experienced in the design of assessment to reduce instances of academic misconduct.
(d) By 28 February 2020, Brighton must produce a report demonstrating that it has implemented any recommendations from the Assessment Design Review across its entire assessment system, capable of being produced to ASQA immediately upon request after that date.
3. Condition 3: Independent Validation of Assessment System
(a) By 30 June 2020, Brighton must cause to be produced an independent validation of its assessment system, tools, processes and outcomes for each of its courses with active enrolments, capable of being produced to ASQA immediately upon request after that date.
(b) The independent validation must be undertaken by independent person/s who have vocational currency in the training product being validated and the training and assessment qualification or assessor skill set at least to the level being validated.
(Citations omitted.)
appeal to the federal court
28 ASQA filed a notice of appeal from the Tribunal on 17 October 2019. In that notice of appeal, ASQA relied on four grounds of appeal referable to four questions of law:
Questions of law
1. Did the Tribunal exceed its jurisdiction or act beyond power when, in considering the appropriate sanction under s 36 of the NVR Act, it set aside the Applicant’s decision to cancel the First Respondent’s registration under s 39 of the NVR Act and substituted it with a decision that the Respondent’s registration be renewed for three years subject to conditions determined by the Tribunal, when s 36(2) makes no provision for the renewal of registration or for the imposition of conditions on the registration or renewed registration of the First Respondent?
2. Did the Tribunal exceed its jurisdiction or act beyond power when, in considering the appropriate action to take under s 83 of the ESOS Act, it set aside the Applicant’s decision under s 83(3) of the ESOS Act to cancel the registration of the First Respondent, and substituted it with a decision that the Respondent’s registration be renewed for three years, effecting an extension of 21 months to the Respondent’s current registration?
3. Did the Tribunal have regard to an irrelevant consideration when, in considering an appropriate sanction under s 36 of the NVR Act and, or, s 83 of the ESOS Act, it considered that it could renew the registration of the First Respondent under each of those Acts respectively for a limited time?
4. Did the Tribunal have regard to irrelevant considerations when, in considering an appropriate sanction under s 36 of the NVR Act, it considered that it could impose conditions on the registration of the Respondent?
Grounds relied on
1. With respect to the first question of law:
(a) The Tribunal purported to renew the First Respondent’s registration under s 39 of the NVR Act for three years, a decision which it had no power to make:
(i) The First Respondent sought review of a reviewable decision made under s 39 of the NVR Act (see s 199 Item 13).
(ii) Subsection 36(2) of the NVR Act lists the sanctions the Tribunal could impose upon the First Respondent if s 36(1) was satisfied. Those actions do not include renewal of registration.
(iii) The Tribunal could shorten the period of the First Respondent’s registration: s 36(2)(c). The Tribunal did not purport to ‘shorten’ the First Respondent’s period of registration nor did it refer to what that period of registration is.
(b) The Tribunal purported to renew the First Respondent’s registration subject to conditions when it had no power to impose conditions on the First Respondent’s registration in its review of a s 39 reviewable decision:
(i) Subsection 36(2) of the NVR Act lists the sanctions the Tribunal could impose upon the First Respondent if s 36(1) was satisfied. Those sanctions do not include the imposition of conditions under s 29 on the registration or the renewal of registration.
2. With respect to the second question of law:
(a) The First Respondent’s registration under the ESOS Act expires on 28 July 2020 and the First Respondent had not made an application to renew that registration under s 10D of the ESOS Act.
(b) The Applicant had not been requested to nor had it made any decision under s 10E of the ESOS Act.
(c) None of the pre-conditions for review by the Tribunal under s 169AG of the ESOS Act had been met in respect of a decision under s 10E, as no such decision was ever made.
(d) A reviewable decision had been made to take action under s 83 (see s 169AB Item 9), which was reviewable by the Tribunal.
(e) Subsection 83(3) of the ESOS Act lists the actions the Tribunal could take against the First Respondent if it formed the necessary belief. Those actions do not include renewal of registration.
(f) The Tribunal purported to renew the First Respondent’s registration under the ESOS Act for three years, a decision which it had no power to make.
3. With respect to the third question of law:
(a) Neither s 36 of the NVR Act nor s 83 of the ESOS Act makes any provision for a sanction by way of a renewal of registration for a limited period of time whether that renewal was subject to conditions or not.
(b) The Tribunal’s finding that a renewal for a limited period was an appropriate sanction in all of the circumstances was based on the Tribunal taking into account an irrelevant consideration, namely that the limitation on the renewal would be a sanction available to the decision maker.
4. With respect to the fourth question of law, the Tribunal took into account irrelevant considerations when it considered that on review of a decision under s 39 of the NVR Act, it was open to it to impose conditions on the registration of the First Respondent, because s 36 makes no provision for the imposition of conditions on the ongoing or renewed registration of an NVR registered training organisation.
29 ASQA seeks the following orders based on the above grounds of appeal:
1. The appeal is allowed.
2. The decision of the Tribunal in proceedings 2019/0921 and 2019/0992 dated 19 September 2019 is set aside.
3. The matter is remitted, to a differently constituted Tribunal, to be heard and determined according to law.
4. The First Respondent is to pay the Applicant’s costs of the appeal.
30 ASQA does not appeal the entirety of the Tribunal’s decision. ASQA appeals only the decision insofar as the Tribunal set aside ASQA’s decisions to cancel Brighton Pacific’s registration under s 39 of the NVR Act and to cancel Brighton Pacific’s registration under ss 83(3) and 93(4) of the ESOS Act, and to substitute a different decision in respect of those registrations.
31 On 8 November 2019 Brighton Pacific filed a Notice of Contention in the following terms:
The First Respondent (Brighton) contends that the decision of the Administrative Appeals Tribunal (Tribunal) should be affirmed on grounds other than those relied on by the Tribunal.
Brighton does not seek to cross-appeal from the decision.
Grounds relied on
1. The Tribunal had power to make a decision whose effect was to extend Brighton’s registration under the National Vocational Education and Training Regulator Act 2011 (Cth) (NVR Act) pursuant to s 20(2) of the NVR Act.
(a) For the purposes of reviewing the decision of ASQA under s 39 of the NVR Act, the Tribunal was able to exercise all the powers and discretions that were conferred by any relevant enactment on ASQA (see s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act)).
(b) These included a power, in exceptional circumstances to extend Brighton’s registration under the NVR Act without Brighton needing to apply to have its registration renewed (see s 20(2) of the NVR Act).
(c) The circumstances before the Tribunal were exceptional, in that:
(i) Brighton’s operations had already been recently investigated by ASQA, including by way of an out of cycle audit conducted from 7-10 August 2018.
(ii) following those investigations, ASQA had decided to cancel Brighton’s registration under the NVR Act pursuant to s 39 of the NVR Act; and
(iii) Brighton had applied to the Tribunal for review of ASQA’s decision to cancel its registration under the NVR Act.
2. The Tribunal had power to make a decision whose effect was to extend Brighton’s period of registration under the Education Services for Overseas Students Act 2000 (Cth) (ESOS Act) to align the period with Brighton’s period of registration under the NVR Act pursuant to s 10L(2) of the ESOS Act:
(a) For the purpose of reviewing the decision made by ASQA under s 83(3) of the ESOS Act, the Tribunal was able to exercise all the powers and discretions that were conferred by any relevant enactment on ASQA (see s 43(1) of the AAT Act).
(b) These included a power to extend Brighton’s period of registration for the purpose of aligning the period with Brighton’s period of registration under the NVR Act (see s 10L(2) of the ESOS Act).
32 Both ASQA and Brighton Pacific were represented by Senior Counsel at the hearing, and both parties filed detailed submissions. In the course of the hearing, I requested the parties to identify key questions they submitted required determination by the Court in respect of the grounds of appeal and questions of law raised. The parties could not reach agreement in respect of relevant questions, and I directed that they each file supplementary submissions after the hearing.
33 At the hearing there was limited reliance by Brighton Pacific on its Notice of Contention filed in this appeal. I shall return to the Notice of Contention later in this judgment.
relevant principles
34 Section 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) relevantly provides:
Enactment may provide for applications for review of decisions
(1) An enactment may provide that applications may be made to the Tribunal:
(a) for review of decisions made in the exercise of powers conferred by that enactment; or
(b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
35 Both the NVR Act (s 203) and the ESOS Act (s 169AG) provide that applications may be made to the Tribunal for review of reviewable decisions under those Acts. It is not controversial that the NVR Act and the ESOS Act are enactments providing for applications to the Tribunal within the meaning of s 25(1) of the AAT Act, or that the relevant decisions of ASQA were reviewable decisions properly the subject of applications to the Tribunal.
36 In reviewing such decisions, it is clear that the Tribunal stands in the shoes of the original decision-maker – in this case ASQA. One need look no further than s 43(1) of the AAT Act, which provides:
Tribunal's decision on review
(1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on 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.
37 Of course in making its decision the Tribunal must give reasons (s 43(2) AAT Act).
38 During the hearing both parties directed my attention to the introductory words to s 43(1) of the AAT Act, namely “for the purpose of reviewing a decision”. The parties were joined on a question of law as to what powers were available to the Tribunal for the purpose of its review of ASQA’s decisions in this case.
39 The core of ASQA’s case was that the Tribunal erred in its decision, in that it acted outside the scope of its powers and had regard to irrelevant considerations, because the Tribunal exercised powers which were other than “for the purpose of reviewing” ASQA’s decisions within the meaning of s 43(1) of the AAT Act. In particular, ASQA submitted that the reviewable decisions marking the boundary of the Tribunal’s review were decisions imposing sanctions for regulatory non-compliance. In this context ASQA further submitted that the Tribunal on review could exercise all the powers and discretions available to ASQA when ASQA considered whether, and if so what, sanction was appropriate under the NVR Act and the ESOS Act.
40 In examining the phrase “for the purpose of reviewing a decision” it is helpful to have regard initially to the decision of Hill J in Secretary, Department of Social Security v Hodgson (1992) 108 ALR 322; (1992) 37 FCR 32. In that case a delegate of the Secretary made a decision to recover an overpayment of unemployment benefits paid to the respondent, however on review the Tribunal – for reasons relating to illness and hardship in respect of the payee – decided to waive part of the debt. The primary Judge noted that the jurisdiction of the Tribunal in that case depended on there having been a decision made by a decision-maker which the Tribunal was authorised to review (at 38). His Honour said (at 38):
Thus, if the original decision-maker, in the present case the Secretary, had not made any decision not to waive payment of the amount overpaid to Mr Hodgson, it would follow, so it was said, that the Administrative Appeals Tribunal had no power to review the matter of waiver. The argument is complicated in the present case by the intervention of the appeal by Mr Hodgson to the Social Security Appeals Tribunal. However, the same argument can be applied to that Tribunal if, despite the language of s 1283(2), the correct position were that the Administrative Appeals Tribunal's task was to review the decision of the Social Security Appeals Tribunal to affirm the Secretary's decision. The Social Security Appeals Tribunal was also not the primary decision-maker, hence, it was submitted, it could not deal with the matter of waiver, because as a matter of fact no decision had been made by the Secretary, or a person with delegated power from the Secretary, not to waive the overpayment. Hence, even though the Social Security Appeals Tribunal purported to consider the matter for itself in connection with the review of the decision of the Secretary to recover the overpayment, it had no power so to do and hence on a review of its decision by the Administrative Appeals Tribunal, there was no power in that Tribunal to consider the question of waiver.
41 His Honour continued at 38-39:
In my view, and on the assumption that there was as a matter of fact no consideration given by any relevant decision-maker to the question of waiver (at least before the matter came before the Social Security Appeals Tribunal), this question may be resolved by determining whether in reviewing the decision of the delegate to proceed to recover the overpayment from Mr Hodgson s 43(1) of the Administrative Appeals Tribunal Act empowered the Tribunal to itself exercise the power of waiver conferred upon the Secretary, or whether the power of waiver was to be seen as so separate and remote from the decision to recover, that exercise by the Tribunal of the power to waive the overpayment was not authorised by s 43.
If, as the Tribunal appears to have concluded, there was a legal obligation upon the Secretary when considering the question of recovery to consider the issue of waiver, then the answer is self-evident. The same obligation would flow through to the Tribunal. However, I do not think that it is correct to say that there is an obligation to consider waiver every time the issue of raising the overpayment as a debt and its recovery arises. …
42 Later his Honour said at 39-40:
Although I accept, therefore, that a decision to recover an overpayment does not necessarily involve a consideration of waiver, I do not think that it follows that in an appeal against the decision to proceed to recover an overpayment where the question of waiver has been raised by an applicant the Tribunal is precluded from exercising the power to waive under s 43(1) of the Administrative Appeals Tribunal Act. The language of s 43 is quite clear and unambiguous. It empowers the Tribunal to exercise all the powers and discretions conferred upon the original decision-maker provided it does so for the purpose of reviewing a decision. Provided the necessary purpose is present, the power conferred upon the Tribunal is not otherwise limited. It is not necessary or permissible to put a gloss upon s 43 that would permit the Tribunal to exercise the decision-maker's powers and discretions only when those powers or discretions are necessarily interdependent with the decision under review or where the power or discretion to be exercised by the Tribunal is necessarily involved in the making of the decision under review.
Of course there must be an association between the power to be exercised by the Tribunal and the decision under review, but that association is to be found in the restriction of the grant of power in s 43(1) to the purpose of the Tribunal's review. The test is one of relevance rather than dependence. Where the exercise of a power or discretion is relevant to the making of the decision under review then, if requested, the Tribunal may exercise the discretion. The Tribunal is …"another executive body in an administrative hierarchy". Where its jurisdiction is enlivened by an application to review an administrative decision it exists to do again, within the limits of the review, that which the decision-maker was entrusted to do. To adapt what was said by Kitto J in Mobil Oil Australia Pty Ltd v Commissioner of Taxation (Cth) (1963) 113 CLR 475 at 502, the Tribunal in deciding whether an overpaid benefit should be recovered has the function of working out as a step in administration what it considers the situation to be. If the original decision-maker could legitimately have considered the issue of waiver before the issue of recovery and would have been obliged so to do if requested by the recipient of the overpayment, why should the Tribunal be precluded from so doing when for the purposes of the review it stands in the shoes of the original decision-maker?
It follows, in my view, that the Tribunal had jurisdiction to determine for itself, but as part of its review of the decision to recover the overpaid benefits, the question of whether some or all of the benefit should be waived.
43 In my respectful opinion the explanation of his Honour in Hodgson of the effect of s 43 of the AAT Act and the relevant powers of the Tribunal on review was both concise and accurate.
44 In Australian Securities and Investments Commission v Donald (2003) 136 FCR 7; [2003] FCAFC 318 the Full Court referred to the principles articulated in Hodgson and other cases, observing:
24. The effect of subs 43(1) of the AAT Act is that, "[f]or the purpose of reviewing a decision", the Tribunal stands in the place of the original decision-maker. That is, for the purpose of determining whether the decision under review was the correct or preferable decision on the material before it, the Tribunal "may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision" (emphasis added). As a consequence, the Tribunal is not confined to the decision-making power upon which the previous decision-maker actually relied in making the decision under review, but is armed with all the powers and discretions of the original decision-maker that are relevant to the review: see, e.g., Re Control at 92 per Davies J; Fletcher v Commissioner of Taxation (1988) 19 FCR 442 ("Fletcher") at 453 per Lockhart, Wilcox and Burchett JJ; Secretary, Department of Social Security v Hodgson [1992] FCA 338; (1992) 37 FCR 32 ("Hodgson") at 39-40 per Hill J; and Secretary, Department of Employment, Education, Training and Youth Affairs v MacKay (1998) 29 AAR 95 at 98 per Kenny J.
25. The decision of the Full Court in Fletcher well illustrates the effect of subs 43(1) of the AAT Act. In that case, the Commissioner of Taxation rejected the taxpayers’ claims for allowable deductions in relation to certain annuity payments and disallowed their subsequent objections. On reviewing the Commissioner’s objection decisions, the Tribunal not only affirmed the Commissioner’s disallowance of the objections but also exercised the discretion conferred upon the Commissioner by s 177F(1) of the Income Tax Assessment Act 1936 (Cth), to cancel a tax benefit (as defined in s 177C of that Act). The Full Court rejected the taxpayers’ submission that subs 43(1) of the AAT Act did not empower the Tribunal to exercise a discretion vested in the decision-maker at an earlier stage in the process and unexercised by the Commissioner. In so doing, the Full Court stated, at 452:
As a matter of principle, it must be correct, as submitted on behalf of [the taxpayers], that the powers and discretions referred to by s 43(1) are the powers and discretions vested in the original decision-maker for the purposes of making the decision under review. They do not include any powers and discretions which may be vested in the decision-maker for some other purpose. ...
However, we do not think that it follows that, in the present case, the Tribunal lacked jurisdiction to exercise the discretion conferred upon the Commissioner by s 177F(1).
26. The Full Court reached this conclusion, because, after considering the relevant statutory provisions, it concluded, at 453, that:
... in determining an objection to an assessment, the Commissioner is entitled to make a determination under s 177F of the Act; and thereafter to give effect to that determination by an appropriate decision under s 186.
By force of s 43 of the Administrative Appeals Tribunal Act, the Tribunal has all the powers and discretions that are conferred by s 186 of the Income Tax Assessment Act upon the Commissioner. In exercising those powers and discretions the Tribunal was bound to consider the facts as they were proved in evidence before the Tribunal, making the decision which, upon that evidence and at that time, was the correct or preferable decision to be made in considering the objection. The Tribunal was not confined either to the material which was before the Commissioner, as primary decision-maker, or the events which had occurred up to that time ...
Once it is understood that, in exercising his powers under s 186, the Commissioner would have been free to exercise a discretion under s 177F of the Income Tax Assessment Act, it follows that, in reviewing the Commissioner’s decision under s 186, the Tribunal is free to exercise that same discretion if, upon the material then before it, it seems proper to take that course.
27. The Full Court made some further observations that are relevant to the present case, saying, at 453-454:
In coming to that conclusion, we appreciate that s 177F(3)-(8) provides a regime whereunder the Commissioner may make compensating adjustments in respect to any taxpayer. ... In a case where the requisite adjustment needs to be made to an assessment not before the Tribunal – either because it relates to some other taxpayer or to some other year of income – the Tribunal could not itself make an adjustment under s 177F(3). But we see no difficulty about the Commissioner following up the decision of the Tribunal by making the appropriate adjustment, in the same way as he would do if he himself had made the original s 177F(1) determination. (Emphasis added)
(Emphasis in original.)
45 The observations of Justice Hill in Hodgson were adopted by the Full Court in Commonwealth Bank Officers Superannuation Corporation Pty Ltd v Commissioner of Taxation (2005) 148 FCR 427; [2005] FCAFC 244 where their Honours said:
29. Ultimately, the question turns upon the proper construction of s 43 of the AAT Act. Section 43 empowers the Tribunal to exercise all the powers and discretions conferred upon the original decision maker, provided it does so for the purpose of reviewing a decision. Provided the necessary purpose is present, the power conferred upon the Tribunal is not otherwise limited. It is neither necessary nor permissible to put a gloss upon s 43 that would permit the Tribunal to exercise the decision maker’s powers and discretions only when those powers or discretions are necessarily interdependent with the decision under review, or where the power or discretion to be exercised by the Tribunal is necessarily involved in the making of the decision under review - see Secretary, Department of Social Security v Hodgson [1992] FCA 338; (1992) 37 FCR 32 at 39-40.
30. Thus, so long as the exercise of powers and discretions by the Tribunal is for the purpose of reviewing a decision, all of the powers and discretions conferred by any relevant enactment on the decision maker who made the decision, can be exercised by the Tribunal. Clearly, the Surcharge Act is a relevant enactment. Section 8(5)(b) of the Surcharge Act confers a discretion on the Commissioner to give or withhold approval of another method. The decision that is to be reviewed by the Tribunal is the Commissioner’s objection decision of 26 August 2004 in respect of the assessment of the surcharge liability relating to Mr Cocks. The unequivocal words of s 43(1) are that, for the purpose of reviewing that decision, the Tribunal may exercise all the powers and discretions that are conferred by the Surcharge Act, as a relevant enactment, on the Commissioner.
(Emphasis in original.)
46 The width of Justice Hill’s construction of s 43 of the AAT Act was also accepted as accurate by the Full Court in Commissioner of Taxation v Hornibrook (2006) 156 FCR 313; [2006] FCAFC 170.
47 In this context I also note the following comments of Kiefel J (as her Honour then was) in Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31:
136. The respondent argued that s 43(6), read with s 43(1), shows that the Tribunal is only intended to exercise the power of the original decision-maker when it discovers error. Error is the foundation for the power to vary or set aside the decision, under s 43(1)(b) or (c)(i). Where it affirms a decision it determines that the decision is correct. In the case of remitter, the further exercise of powers is left to the original decision-maker.
137. The respondent's argument does not distinguish between the powers given to the Tribunal by s 43(1) "[f]or the purpose of reviewing a decision" and the making of a decision, under pars (a) to (c), following upon that review and to give effect to it. Indeed the argument tends to ignore the powers, which are to permit the Tribunal to consider for itself what the decision should be. Such powers are not consistent with a role limited to the ascertainment of error.
…
141. The reasons of the members of the Full Court of the Federal Court in Drake v Minister for Immigration and Ethnic Affairs confirm what is apparent from s 43(1), that the Tribunal reaches its conclusion, as to what is the correct decision, by conducting its own, independent, assessment and determination of the matters necessary to be addressed. To the contrary of the argument put by the respondent on this appeal, that the Tribunal's exercise of power is dependent upon the existence of error in the original decision, Smithers J denied that the Tribunal was limited to something of a supervisory role. As his Honour said, the Tribunal is authorised and required to review the actual decision, not the reasons for it.
142. In considering what is the right decision, the Tribunal must address the same question as the original decision-maker was required to address. Identifying the question raised by the statute for decision will usually determine the facts which may be taken into account in connection with the decision. The issue is then one of relevance, determined by reference to the elements in the question, or questions, necessary to be addressed in reaching a decision. It is not to be confused with the Tribunal's general procedural powers to obtain evidence. The issue is whether evidence, so obtained, may be taken into account with respect to the specific decision which is the subject of review.
(Footnotes omitted, emphasis added.)
48 More recently in Frugtniet v Australian Securities and Investments Commission (2019) 367 ALR 695; [2019] HCA 16, Kiefel CJ, Keane and Nettle JJ observed:
51. …[E]xcept where altered by some other statute, which has not occurred here, the jurisdiction conferred on the AAT by ss 25 and 43 of the AAT Act, where application is made to it under an enactment, is to stand in the shoes of the decision-maker whose decision is under review so as to determine for itself on the material before it the decision which can, and which it considers should, be made in the exercise of the power or powers conferred on the primary decision-maker for the purpose of making the decision under review. The AAT exercises the same power or powers as the primary decision-maker, subject to the same constraints. The primary decision, and the statutory question it answers, marks the boundaries of the AAT's review. The AAT must address the same question the primary decision-maker was required to address, and the question raised by statute for decision by the primary decision-maker determines the considerations that must or must not be taken into account by the AAT in reviewing that decision. A consideration which the primary decision-maker must take into account in the exercise of statutory power to make the decision under review must be taken into account by the AAT. Conversely, a consideration which the primary decision-maker must not take into account must not be taken into account by the AAT.
(Footnotes omitted.)
Issues for determination
49 Against this background, and taking into account in particular the grounds of appeal, the questions of law specifically raised by ASQA, and relevant submissions of the parties, I consider that there are essentially two issues for determination by the Court in this matter:
(1) Did the Tribunal have power under the NVR Act to “renew” Brighton Pacific’s registration, impose a limit of three years on that registration, and impose other conditions on the registration? (grounds of appeal 1, 3 and 4)
(2) Did the Tribunal have power under the ESOS Act to “renew” Brighton Pacific’s registration under the ESOS Act for three years? (grounds of appeal 2 and 3(a))
50 I will examine these issues in turn.
issue 1: Did the Tribunal have power under the NVR Act to “renew” Brighton Pacific’s registration, impose a limit of three years on that registration, and impose other conditions on the registration? (grounds of appeal 1, 3 and 4)
51 As the authorities make plain, the starting point for the Court in the current proceeding is s 43(1) of the AAT Act and the principle that the Tribunal stands in the place of ASQA as the original decision-maker in reviewing ASQA’s decisions. Further, as the authorities also make plain, the Tribunal was not confined to exercise the same powers as those exercised by ASQA in its decisions.
52 Put simply, and to adopt the phraseology of the cases to which I have referred – could ASQA as the original decision-maker legitimately have made the same decision that the Tribunal subsequently made in this context? At all times ASQA had taken the view that Brighton Pacific had failed to comply with applicable regulatory standards under both the NVR Act and the ESOS Act. In respect of the NVR Act, s 36(1) clearly provides that Pt 2 Div 3 Subdiv B of the NVR Act applies if the regulator is satisfied it is appropriate to impose one or more sanctions on a registered training organisation. Section 36(2) sets out certain sanctions. Section 39, which is also in Subdiv B, empowers the regulator to cancel registration if the regulator considers it appropriate to do so. In any case before it, the regulator is equally empowered not to impose sanctions if it considers such a course is appropriate.
53 With these principles in mind, I now turn to key points raised in the notice of appeal by ASQA concerning the Tribunal’s decision and the NVR registration of Brighton Pacific.
“Renewal”
54 ASQA submitted that the Tribunal purported to renew Brighton Pacific’s registration under s 36 of the NVR Act for 3 years subject to identified conditions, and that “renewal” of registration was not a power open to the Tribunal (or ASQA) under s 36. Section 36 provides:
Sanctions
(1) This Subdivision applies if:
(a) after natural justice requirements have been satisfied, the National VET Regulator is satisfied that it is appropriate to impose one or more sanctions on an NVR registered training organisation; or
(b) in exceptional circumstances, the National VET Regulator is satisfied that it is appropriate to impose one or more sanctions on an NVR registered training organisation without satisfying natural justice requirements.
(2) The National VET Regulator may do one or more of the following:
…
(b) give a written direction to an NVR registered training organisation requiring the organisation to notify its VET students, in writing, of a matter set out in the direction;
(c) shorten the period of an NVR registered training organisation's registration;
(d) amend an NVR registered training organisation's scope of registration;
(e) suspend all or part of an NVR registered training organisation's scope of registration under section 38;
(f) cancel an NVR registered training organisation's registration under section 39.
(3) In determining what action to take in relation to an NVR registered training organisation, the National VET Regulator may have regard to:
(a) the organisation's conduct, or circumstances existing, before the Regulator had cause to consider imposing a sanction on the organisation (including before the commencement of this section); and
(b) if section 37 applies--the organisation's conduct, or circumstances existing, since the Regulator gave the organisation a written notice as mentioned in that section.
55 It is clear that statutory renewal of registration under the NVR Act is not a power open under s 36(2) of the NVR Act. Section 31 of the NVR Act provides for statutory renewal of registration under that Act in the following terms:
Renewal of registration
(1) The National VET Regulator may renew an NVR registered training organisation's registration under section 17 if the organisation makes an application for renewal:
(a) at least 90 days before the day the organisation's registration expires; or
(b) within such shorter period as the Regulator allows.
(2) An application must be accompanied by the application fee determined by the Minister, by legislative instrument, under section 232.
(3) An NVR registered training organisation's registration is taken to continue until the organisation's application is decided.
(4) An NVR registered training organisation may apply for renewal of registration during a period when all or part of its scope of registration is suspended.
56 Clearly – as submitted by ASQA – “renewal” of registration pursuant to s 31 of the NVR Act must be preceded by an application for renewal by the relevant registered (or previously registered) training organisation.
57 So far as I can ascertain the Tribunal referred to “renewal” in three paragraphs of its reasons, namely:
107. I am not satisfied that cancellation of registration is the correct or preferable decision. As submitted by the respondent, and undoubtedly correct, my concern is to ensure the maintenance of high and consistent standards and to protect the reputation of the nation as a provider of first class education to Australian and overseas students. The matters raised by the respondent do not involve dishonesty or any kind of fraudulent conduct, not to say that that is the relevant test. It is not. The applicant has shown insight and has shown itself ready and willing to correct failings identified and to implement a system to ensure that its compliance is improved by the employment of more staff to monitor compliance. The applicant should be given an opportunity to perform at a higher standard than it has to date. To ensure that happens, its registration should be renewed for a limited period. Both parties have suggested some conditions that might be imposed on registration. I take those into account. Furthermore, its application to change its CRICOS registration to extend to further courses should be refused, at least until after its next audit. It has not performed at a sufficiently high standard to justify allowing it to offer more courses.
DECISION
108. The Tribunal sets aside the decision to cancel the applicant’s registration under section 39 of NVR Act and directs that the renewal of registration for a period of three years be subject to conditions set out hereunder.
109. The Tribunal sets aside the decision to cancel the applicant’s registration for all courses at all locations under section 83(3) and 93(4) of the ESOS Act and directs that the renewal of registration for a period of three years be subject to conditions set out hereunder.
(Emphasis added.)
58 Brighton Pacific submitted that, on the proper construction of the Tribunal’s decision, the Tribunal used the term “renew” to refer to “reinstating” or “restoring” Brighton Pacific’s registrations in circumstances where they had been cancelled by ASQA.
59 The position as submitted by Brighton Pacific clearly appears to be the case.
60 The Tribunal in its decision addressed an application for merits review of ASQA’s decisions, where Brighton Pacific’s reasons for its application challenging ASQA’s decisions in the Tribunal were:
Brighton Pacific after our initial strategic review audit in August 2018 was found to be non-compliant in certain areas of the audit scope.
The whole company got together to resolve the issues identified in the audit report when we received it in November 2018.
Brighton Pacific is very confident that the areas identified as being non-compliant were rectified and/or rectifiable via the remedial action plans which we have submitted to ASQA.
After almost 3 months, ASQA came back to us today stating that after the review of all the evidence and submissions, they have made a decision to cancel our registration.
This is an extremely unfair decision, a result that will cause irreparable reputational damage to our organisation, and Brighton Pacific would like to review this decision and resubmit all evidence in front of the Administrative Appeals Tribunal.
Thank you very much and hope to receive a hearing date soon.
61 Certainly as evidenced by ASQA’s decision, renewal of registration under the NVR Act was not an issue between Brighton Pacific and ASQA. This was not surprising in circumstances where ASQA’s decision to cancel Brighton Pacific’s NVR Act registration was made approximately three and a half years before the natural expiry of that registration. Further, and despite the use of the word “renew” by the Tribunal, there is no basis for finding that the Tribunal had treated the application before it as an application by Brighton Pacific to “renew” its NVR Act registration. Again this is not surprising in circumstances where the hearing before the Tribunal took place more than three years before the natural expiry of that registration. In its application to the Tribunal, Brighton Pacific plainly did not seek to “renew” its registration under the NVR Act.
62 Further, Brighton Pacific was not making an “application for registration” pursuant to s 17 of the NVR Act. Rather, Brighton Pacific sought orders from the Tribunal setting aside ASQA’s cancellation decisions of 19 February 2019. Clearly, Brighton Pacific was seeking a decision by the Tribunal to restore its registration under the NVR Act.
63 As the High Court has stated on numerous occasions, reasons for decisions of tribunals ought not be construed minutely and finely with an eye keenly attuned to the perception of error: see for example Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at 272; Plaintiff M64-2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173; [2015] HCA 50 at [59]; and also the Full Court of this Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; [1993] FCA 456 at 287. At no point in its decision did the Tribunal refer to s 31 of the NVR Act, nor any aspect of “renewal” of Brighton Pacific’s registration. As ASQA submitted, the Tribunal was clearly aware of the scope of the decisions it was to review. I consider further the Tribunal was also clearly aware of the powers open to it in reviewing those decisions.
64 The fact that the Tribunal used the word “renewal” is unfortunate when it clearly meant reinstatement or restoration, however in examining the decision and orders of the Tribunal it is necessary for the Court to read the Tribunal’s reasons as a whole, and recognise “loose” language or unhappy phrasing of the Tribunal in this context: see for example Bell, Keane and Nettle JJ in HFM045 v The Republic of Nauru (2017) 350 ALR 34; [2017] HCA 50 at [31]; French J in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; [1993] FCA 456 at 287; Commissioner of Taxation v Zoffanies Pty Ltd (2003) 132 FCR 523; [2003] FCAFC 236 at [28]; and Rawsthorne v Minister for Immigration & Citizenship (2013) 140 ALF 524; [2013] FCAFC 39 at [33].
65 The Tribunal’s orders reinstating the registration of Brighton Pacific under the NVR Act were not made pursuant to s 36 of the NVR Act as submitted by ASQA. Section 36 was not relevant to the decision of the Tribunal to set aside the cancellation of Brighton Pacific’s registration.
66 Rather, for the purpose of reviewing ASQA’s decision under s 39 of the NVR Act to cancel Brighton Pacific’s registration, the Tribunal acted pursuant to s 43(1), which permitted the Tribunal to exercise all the powers and discretions that were conferred by the NVR Act on ASQA in circumstances where Brighton Pacific had contravened the NVR Act. Section 39 permitted the Tribunal to cancel or not cancel the registration as the Tribunal considered appropriate. Under s 43(1) of the AAT Act, the Tribunal had power to make a different decision to that of ASQA, and in this case, unlike ASQA, the Tribunal was not satisfied that it was appropriate to cancel Brighton Pacific’s registration.
67 In its grounds of appeal, ASQA does not specifically claim that the Tribunal was confined by the terms of ASQA’s decisions to imposing a sanction on Brighton Pacific. However, this argument was addressed in detail in submissions, and was raised by the Questions of Law in the notice of appeal. To be clear – I do not accept ASQA’s arguments to this effect. Again – in circumstances where the Tribunal reviewed a decision of ASQA pursuant to s 39 of the NVR Act to cancel Brighton Pacific’s registration, the Tribunal, standing in the place of ASQA, was empowered to decide it was not appropriate to cancel that registration. The “boundary” on the Tribunal suggested by ASQA was illusory. I consider that there is no foundation in the authorities explaining the scope of the Tribunal’s powers for the proposition advanced by ASQA.
68 For completeness, I find that, in respect of its decision to set aside ASQA’s decision and restore Brighton Pacific’s registration under the NVR Act, the Tribunal adequately explained its reasons for doing so, and further its reasons for the limitations and conditions attached to its decision, such that s 43(2) of the AAT Act was satisfied. The Tribunal at [107] clearly explained its view that while there were evident historical shortcomings in the conduct of Brighton Pacific, nonetheless:
None of the matters raised by ASQA involved dishonesty or any kind of fraudulent conduct;
Brighton Pacific had shown insight into its failures;
Brighton Pacific had shown itself ready and willing to correct failings identified;
Brighton Pacific had sought to implement a system to ensure that its compliance was improved by the employment of more staff to monitor compliance;
Brighton Pacific should be given an opportunity to perform at a higher standard than it had to date; and
The Tribunal also refused to change Brighton Pacific’s CRICOS registration to extend to further courses.
69 The Tribunal had had regard, in detail, to audit findings and breaches of Brighton Pacific (for example at [9], [21], [29]-[59], [66]-[104]). The Tribunal noted ASQA’s submissions to it concerning “the sheer number of breaches detected across the audited samples” (at [21]). The Tribunal also noted that its concern was to ensure the maintenance of high and consistent standards and to protect the reputation of the nation as a provider of first class education to Australian and overseas students (at [107]). However the Tribunal considered that, for reasons particularly referable to the steps Brighton Pacific had taken to correct its failures and the Tribunal’s favourable view of evidence of Ms Kee (for example at [64]-[65] and [103]-[105]), that nonetheless ASQA’s cancellation decisions should be set aside while simultaneously providing for a limited period of registration to allow Brighton Pacific to perform at an improved standard. The steps Brighton Pacific had taken to improve its performance, and the Tribunal’s view of Ms Kee taking responsibility to ensure ongoing compliance, were relevant to the decision of the Tribunal in this case.
70 I am satisfied that the use of the terms “renewed” and “renewal” in the context of the Tribunal’s decision meant “reinstating” or “restoring” Brighton Pacific’s registration under the NVR Act, not “renewal” within the meaning of s 31 of the NVR Act. This was certainly the effect of the Tribunal’s orders.
“A period of three years”
71 At [107] of its decision the Tribunal opined that the registration of Brighton Pacific should be “renewed” for a limited period. This limited period was stated at [108] of the Tribunal’s decision as being “for a period of three years”. ASQA submits that, in doing so, the Tribunal considered it was imposing a sanction under s 36 of the NVR Act for Brighton Pacific’s failures under the NVR Act, and relied on paragraphs [87], [93], [99], [101], and [104] of the Tribunal’s reasons as indicative of the decision of the Tribunal to shorten Brighton Pacific’s period of registration. Those paragraphs read:
87. Another issue giving rise to concerns about academic integrity arose in relation to an examination in the course Advanced Diploma of Electrical-Engineering. One student submitted an assessment that clearly indicated that the exam paper had been handed out to him improperly because the document from which he copied and pasted contained actual instructions to the examiner about what information the examiner should hope to find in the answer. Unlike the other matters where students had copied and pasted from their course notes, this matter gives rise to a serious concern about the integrity of the person doing the assessment. It should have been followed up with the teacher immediately but that was not done. Ms Kee was criticised for not having attended to it earlier but she said that it was not apparent to her until raised in the Ms Owen’s Report. I accept that evidence but it is certainly a cause for significant concern and should never have occurred.
93. One student, Ms Laura Harvey was appallingly treated. She gave evidence by telephone from the United Kingdom. Her evidence was challenged but I accept it entirely.
99. The classes were run by Mr Hafeez Niazi. He told her that he worked full-time for the National Australia Bank and was leading the sessions as a favour to the college. She says he did not prepare class notes or appear to be prepared for classes. He read notes from the board and commented that the notes were outdated. Between 7 February 2019 and 15 March 2019 she only received eight hours of genuine teaching. She raised many other matters of complaint.
101. She represents the perfect example of precisely what the legislative scheme seeks to avoid. If there were many similar cases I would have no hesitation in deciding this matter against the applicant. However, I take into account that in the surveys conducted by the respondent at the time of the audit, 85% of students were either satisfied or very satisfied and only 5% were dissatisfied or very dissatisfied. Even 5% is far too high.
104. I am satisfied that at the time of the initial audit and of the final audit there were significant failures to comply with the standards. I take into account the fact that on previous audits the applicant had essentially been found to be compliant. The applicant had a very rapid expansion of its business. It probably expanded beyond its ability to ensure that its compliance with Standards continued to a satisfactory level. I am however satisfied that Ms Kee has tried very hard to rectify issues that have been identified, and taken steps to ensure compliance for the future.
72 I have already explained my view that by “renewal”, the Tribunal meant reinstatement or restoration of registration. While it would have been helpful if the Tribunal had clarified the exact date on which Brighton Pacific’s registration under the NVR Act expired pursuant to its orders, there is nothing remarkable about the decision of the Tribunal that the registration be reinstated for a period of three years.
73 First, the Tribunal had power to make an order different to that of ASQA in respect of the cancellation of Brighton Pacific’s registration under the NVR Act. This is plainly the case in light of s 43(1)(c) of the AAT Act and the discretion open to the Tribunal under s 39 of the NVR Act. It was only in respect of the period of Brighton Pacific’s registration under the NVR Act that the legislation limited the terms of any order the Tribunal could make.
74 Second, ASQA criticised the Tribunal in deciding to impose a limitation of three years on the registration of Brighton Pacific under the NVR Act. The Tribunal explained at [107] that it considered it appropriate to make an order for Brighton Pacific’s registration to be “renewed” for a limited period to ensure that Brighton Pacific had the opportunity to perform to a higher standard.
75 In this case it is plain that the Tribunal took a different view to ASQA in respect of cancellation of Brighton Pacific’s NVR Act registration – which was open to the Tribunal – and set ASQA’s cancellation decision aside. Although the Tribunal considered it was not appropriate to cancel Brighton Pacific’s NVR Act registration under s 39(1), in light of the view the Tribunal took concerning non-compliance by Brighton Pacific, other powers under Pt 2 Div 3 Subdiv B were open to the Tribunal in respect of the registration of Brighton Pacific, including the power to shorten the period of Brighton Pacific’s registration under s 36(2)(c). Provided natural justice requirements are satisfied (s 36(1)(a)) or there are exceptional circumstances (s 36(1)(b)), there is nothing in Pt 2 Div 3 Subdiv B which precluded the Tribunal from exercising powers under s 36 of the NVR Act if it considered it appropriate. Accordingly, it was open to the Tribunal, having decided to set aside the cancellation decision of ASQA under s 43(1) of the AAT Act, to shorten the period of Brighton Pacific’s registration pursuant to s 36(2)(c) of the NVR Act.
76 The reasons for the shortening of the period of registration were explained by the Tribunal at [107]. The Tribunal clearly stated that it was not satisfied that cancellation of registration was the correct or preferable decision, however its concern was to ensure the maintenance of high and consistent standards and to protect the reputation of Australia as a provider of first class education. To that extent the Tribunal considered it appropriate that Brighton Pacific’s registration be reinstated for a limited period.
77 ASQA submitted that there was confusion about dates the Tribunal contemplated in relation to the “three year period” of Brighton Pacific’s registration, and accordingly it was unclear whether the effect of the orders was to shorten the period of Brighton Pacific’s NVR Act registration pursuant to s 36(2)(c). The Tribunal did not specifically refer to s 36(2)(c) of the NVR Act. On reading the Tribunal’s reasons as a whole, however, it was not controversial that, prior to the cancellation decision of ASQA, Brighton Pacific’s registration under the NVR Act was due to expire on 3 May 2022. Section 43(6) of the AAT Act provides:
A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.
(Emphasis added.)
78 While there is controversy between the parties as to when the “period of three years” ordered by the Tribunal commenced, in the absence of specific dates nominated by the Tribunal, it follows from the operation of s 43(6) of the AAT Act that the reinstatement of Brighton Pacific’s NVR registration took effect from 26 March 2019, being the date from which ASQA’s original cancellation decisions became effective.
79 In terms of s 43(6) of the AAT Act, the Tribunal had not “otherwise ordered” that its decision have effect from any date other than the date the decision under review of the original decision-maker had effect. If the Tribunal had intended that the reinstatement of Brighton Pacific’s registration under the NVR Act was to take effect from the expiry of the period of registration Brighton Pacific enjoyed prior to cancellation, I consider the Tribunal would have said so. The absence of specificity by the Tribunal leads to the inevitable conclusion that the Tribunal intended s 43(6) of the AAT Act to operate.
80 It follows that the Tribunal’s order reinstating the registration of Brighton Pacific, but shortening the period of registration for a period of three years from 26 March 2019 pursuant to s 36(2)(c) of the NVR Act and s 43(6) of the AAT Act, meant that the registration would expire on 25 March 2022. This is consistent with the Tribunal’s view that Brighton Pacific’s period of registration should be limited.
Conditions
81 ASQA submitted, inter alia, that:
To the extent that the Tribunal purported to impose conditions on the renewal of the registration of Brighton Pacific it referenced s 29(1) as is possible under s 17(6) of the NVR Act, however the Tribunal had no power to impose conditions in circumstances where s 17 did not apply;
Section 36(2) of the NVR Act does not include conditions as a sanction; and
Sections 21-29 of the NVR Act set out statutory conditions of registration. Although Conditions 2 and 3 imposed by the Tribunal had a footnote to s 29(1) of the NVR Act, conditions under s 29(1) must be imposed by ASQA as the registered training organisation has a right to merits review in respect of such conditions and there could be no merits review if the Tribunal itself imposed the condition.
82 I do not find these submissions persuasive.
83 First, the decision of the Tribunal to reinstate Brighton Pacific’s registration under the NVR Act was not made pursuant to s 36 of the NVR Act. It was made pursuant to s 39 of the NVR Act. The question did not arise as to whether the imposition of conditions was a permitted sanction within the meaning of s 36 as submitted by ASQA.
84 Second, the Tribunal’s task was not to review the refusal of an application for registration under s 17. The Tribunal was considering whether cancellation of Brighton Pacific’s registration under the NVR Act was appropriate, or whether an alternative decision was appropriate (including setting aside ASQA’s cancellation decision). Section 17(6) was irrelevant in the context of the case before the Tribunal and its ultimate decision.
85 Third, s 21 of the NVR Act provides:
Complying with conditions
An NVR registered training organisation must:
(a) comply with the conditions set out in sections 22 to 28; and
(b) comply with any conditions imposed on the organisation's registration under subsection 29(1).
Note: Failure to comply with a condition of registration is a contravention of a civil penalty provision, see section 111.
86 Sections 22 to 28 of the NVR Act set out statutory conditions, particularly referable to compliance. Section 29 provides:
Other conditions
(1) The National VET Regulator may impose other conditions on an NVR registered training organisation's registration. Such conditions need not be imposed at the time of registration.
(2) The National VET Regulator may vary a condition imposed under subsection (1).
87 There are no express limits to the power of the regulator under s 29(1) of the NVR Act to impose conditions on the registration of a registered training organisation. Certainly s 29 is not dependent in any way on the statutory conditions in Pt 2 Div 1 Subdiv B. Further, it is apparent on the plain reading of s 29(1) of the NVR Act that conditions imposed pursuant to that section may be imposed at any time during the term of the registration.
88 Before the Tribunal, Brighton Pacific sought an order that ASQA’s cancellation of registration under the NVR Act be set aside. Following reinstatement of Brighton Pacific’s registration under the NVR Act, by operation of s 43(1) of the AAT Act the Tribunal had available to it powers under the NVR Act referable to the registration of Brighton Pacific, including the power to impose conditions on the registration of Brighton Pacific pursuant to s 29(1) of the NVR Act.
89 ASQA contended that Brighton Pacific would be denied the right to merits review of a decision of the Tribunal imposing conditions under s 29(1) if the Tribunal could exercise that power. This may well be the case. However, such an outcome is no reason to read down the express terms of s 43(1) of the AAT Act, and deny the Tribunal’s jurisdiction to exercise all powers and discretions conferred by any relevant enactment. As Brighton Pacific submitted – in my view correctly – there is no qualification in s 43(1) that prevented the Tribunal from exercising a power different to that exercised by the original decision-maker if an exercise of the power by the original decision-maker would have been reviewable.
90 It follows that it was open to the Tribunal to set aside the decision of ASQA to cancel the registration of Brighton Pacific under the NVR Act, reinstate that registration, but pursuant to s 29(1) of the NVR Act make that registration subject to the conditions set out in the Tribunal’s reasons for decision.
Conclusion
91 I make no findings in respect of ground 1 of the Notice of Contention, on the basis that the effect of the order of the Tribunal was not to extend Brighton Pacific’s registration under the NVR Act and accordingly s 20(2) of the NVR Act was irrelevant. Grounds of appeal 1, 3 and 4 are not substantiated.
Issue 2: Did the Tribunal have power under the ESOS Act to “renew” Brighton Pacific’s registration under the ESOS Act for three years? (grounds of appeal 2 and 3(a))
92 As I noted earlier in this judgment, the registration of Brighton Pacific under the ESOS Act was due to expire on 28 July 2020. The Tribunal at [109] set aside the decision of ASQA to cancel Brighton Pacific’s registration for all courses at all locations under ss 83(3) and 93(4) of the ESOS Act, and directed that the renewal of registration for a period of three years be subject to the conditions set out in the reasons.
93 ASQA claimed in summary that Brighton Pacific had not made an application to renew its registration under s 10D of the ESOS Act, nor had ASQA been requested to nor made any decision under s 10E of the ESOS Act, and the actions the Tribunal could take against Brighton Pacific were listed under s 83(3) of the ESOS Act (which did not include renewal of registration).
94 My findings concerning the powers available to the Tribunal under the NVR Act, for the purpose of reviewing ASQA’s decision cancelling Brighton Pacific’s registration, are equally applicable to the powers available to the Tribunal under the ESOS Act in respect of Brighton Pacific’s registration under the ESOS Act. In that light, ASQA’s contentions concerning the decision of the Tribunal and the ESOS Act registration of Brighton Pacific can be addressed with relative brevity.
95 First, for reasons I have already explained in respect of the “renewal” of Brighton Pacific’s registration under the NVR Act, in referring to “renewal” of Brighton Pacific’s registration under the ESOS Act, it is clear that the Tribunal actually meant reinstatement or restoration of that registration following the decision to set aside ASQA’s decision. In particular, it is clear that:
Brighton Pacific had not applied to renew its registration pursuant to s 10D of the ESOS Act; and
The Tribunal did not in any way frame its decision in terms of s 10E of the ESOS Act.
96 Section 83(3) of the ESOS Act provides that the decision-maker may cancel a registered provider’s registration. Equally under that section, the decision-maker may decide not to cancel the registration. It was clearly open to the Tribunal to find that it was not appropriate to cancel Brighton Pacific’s registration under the ESOS Act, and to set aside ASQA’s cancellation decision.
97 As I have already observed, renewal of registration was not an issue between Brighton Pacific and ASQA, nor was it an issue between the parties in the Tribunal. Similarly to the position in respect of the NVR Act registration, this was not surprising in circumstances where ASQA’s decision to cancel Brighton Pacific’s ESOS Act registration was made approximately eighteen months before the natural expiry of that registration, and the hearing before the Tribunal took place more than a year before the natural expiry of that registration.
98 The issue squarely before the Tribunal was whether ASQA’s decision to cancel Brighton Pacific’s registration under s 83(3) and s 93(4) of the ESOS Act should be affirmed, varied or set aside pursuant to s 43(1) of the AAT Act. The Tribunal’s decision to set aside ASQA’s cancellation decision and effectively restore Brighton Pacific’s registration was framed in terms of s 83(3) and s 93(4) of the ESOS Act.
99 For reasons I set out earlier in this judgment, referable to Brighton Pacific’s registration under the NVR Act and the operation of s 43(6) of the AAT Act, the period of three years to which the Tribunal referred at [109] of its reasons in relation to Brighton Pacific’s registration under the ESOS Act commenced on 26 March 2019, being the date on which ASQA’s cancellation decision became effective, for expiry on 25 March 2022. This was not “renewal” of Brighton Pacific’s ESOS Act registration – it was, however, lengthening that period of registration.
100 Second, the question arises whether, having reinstated Brighton Pacific’s registration under the ESOS Act, the powers under s 10L of the ESOS Act were open to the Tribunal. In ground 2 of the Notice of Contention Brighton Pacific relied on s 10L(2) of the ESOS Act. Both parties made detailed submissions about this aspect of the Notice of Contention at the hearing before me.
101 Section 10L materially provides:
Extension of a registered provider's period of registration
(1) …
(2) The ESOS agency for a registered provider that is a registered VET provider may extend the provider's period of registration for the purpose of aligning the period with the provider's period of registration under the NVETR Act.
(3) …
(4) The ESOS agency for a registered provider must not extend a particular period of registration under subsection (1), (2) or (3) more than once.
(5) The ESOS agency for a registered provider must use a risk management approach when considering whether to extend the provider's period of registration.
102 ASQA submitted in summary that the Tribunal had no power to make orders referable to s 10L(2) in circumstances where:
The Tribunal was imposing a sanction;
An extension of a registration period is not a sanction;
There could be no alignment with the NVR Act registration if that registration was “renewed”;
The Tribunal at no point engaged in any consideration on the reasons for alignment of registration; and
Section 83(3) of the ESOS Act does not contemplate extension of registration.
103 In respect of these arguments however I find as follows:
In accordance with s 43(1) of the AAT Act, the task of the Tribunal in reviewing the decision of ASQA to cancel Brighton Pacific’s ESOS Act registration was to determine whether ASQA’s decision pursuant to s 83(3) and s 94(3) should be affirmed, varied, or set aside. It was not confined to imposing a sanction on Brighton Pacific for non-compliance with the ESOS Act or relevant Standards. Restoring Brighton Pacific’s ESOS Act registration was an option open to the Tribunal.
In the course of making its decision the Tribunal gave careful consideration to Brighton Pacific’s non-compliance with Standards relevant to its ESOS Act registration, in particular clauses 1.8, 4.1 and 8.1 of the Standards for Registered Training Organisations 2015 (at [29], [70], [72]-[73], [79]-[80] of the Tribunal’s reasons). The Tribunal noted that ASQA placed great weight in particular on Brighton Pacific’s failure to comply with clause 1.8 of the 2015 Standards. In that respect it is clear that the Tribunal was aware of the reasons for ASQA’s cancellation decision, and ASQA’s case for confirmation of that decision. Ultimately, however, the Tribunal did not prefer the position advocated by ASQA.
As I have found earlier in this judgment, and contrary to the submission of ASQA: in circumstances where the Tribunal formed the view that ASQA’s other decision concerning Brighton Pacific’s NVR Act registration should be set aside and that registration reinstated, no issue of “renewal” of Brighton Pacific’s registration under the NVR Act.
The fact that both registrations of Brighton Pacific under the NVR Act and the ESOS Act had been cancelled was squarely before the Tribunal. The Tribunal considered that both registrations should be reinstated.
The Tribunal was clearly aware that Brighton Pacific was registered under the NVR Act and the ESOS Act on different dates (at [2] of the Tribunal’s reasons). While the Tribunal did not identify the expiry date of the ESOS Act registration, I infer that the Tribunal was aware that Brighton Pacific’s registrations under the ESOS Act and the NVR Act did not align.
It was open to the Tribunal to reinstate Brighton Pacific’s cancelled registration under the ESOS Act. Where Brighton Pacific was registered under both the NVR Act and the ESOS Act, s 10L(2) of the ESOS Act reflects the intention of Parliament that there is utility in the alignment of registration of the same provider under the NVR Act and the ESOS Act.
Section 10L of the ESOS Act is in Pt 2 Div 3 Subdiv D of the Act, which is headed “Changes to registration etc”. The decision-maker may, at any time, extend a registered provider’s period of registration for the purpose of aligning it with registration under the NVR Act. Section 10L is not dependent on any other provision of the ESOS Act. The power is at large, exercisable at the discretion of the decision-maker in appropriate circumstances.
The fact that neither Brighton Pacific nor ASQA sought an order from the Tribunal under s 10L(2) is, in my view, irrelevant. Exercise of the power under s 10L(2) is not dependent on an application by the registered provider, or indeed by anyone.
104 The review by the Tribunal of the decision of ASQA concerning Brighton Pacific’s ESOS Act registration was not conducted in a vacuum. It was against the background of Brighton Pacific being registered under both the NVR Act and the ESOS Act. The Tribunal was aware of, and indeed requested to make a decision in respect of, cancellation of both registrations. Once the Tribunal had concluded that Brighton Pacific’s registration under the NVR Act should be reinstated and the period limited to three years, s 10L(2) of the ESOS Act was enlivened for the Tribunal, in respect of Brighton Pacific’s ESOS Act registration, if the Tribunal considered it appropriate to make a relevant order aligning the registrations. As Kirby J explained in Shi at [60], the Tribunal was able to utilise all of the powers enjoyed by the original decision-maker at the time the Tribunal made its decision. The same power would have been available to ASQA when considering whether to cancel the registrations of Brighton Pacific under the NVR Act and the ESOS Act.
105 The Tribunal explained at [108] that it considered Brighton Pacific should be given an opportunity to perform at a higher standard than it had to date, and considered it appropriate that registration be for a period of three years to ensure that that happened. The Tribunal clearly intended this three year period to apply in respect of both registrations, and so ordered. The failure of the Tribunal to specifically advert to s 10L(2) of the ESOS Act is unfortunate, but not in my view fatal to its decision as set out in [109] when the Tribunal’s reasons are read as a whole and in circumstances where the Tribunal clearly sought to align the periods of registration under the two Acts.
106 Grounds of appeal 2 and 3(a) are not substantiated. However I find that ground 2 of Brighton Pacific’s Notice of Contention is substantiated.
Conclusion
107 I have found that the grounds of appeal have not been substantiated, and further that the decision of the Tribunal in respect of its Order 2 should be affirmed for reasons set out in ground 2 of Brighton Pacific’s Notice of Contention. It follows that the application is dismissed.
108 While ordinarily costs follow the event, at the hearing both parties submitted that they wished to be heard in respect of costs once judgment was delivered and they had had an opportunity to peruse my reasons. In consultation with the parties, I will make case management orders for such submissions.
I certify that the preceding one hundred and eight (108) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. |
Associate:
