Federal Court of Australia

Barque Institute Pty Ltd v Tertiary Education Quality and Standards Agency [2021] FCA 39

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The applicant pay the respondent’s costs as assessed or agreed.

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

REASONS FOR JUDGMENT

BROMWICH J

1    On 24 January 2020, the Administrative Appeals Tribunal affirmed a refusal by the respondent, the Tertiary Education Quality and Standards Agency (TEQSA or Agency), of an application by Barque Institute Pty Ltd for registration as a higher education provider: Barque Institute Pty ltd and Tertiary Education Quality and Standards Agency [2020] AATA 70. The refusal of registration was deemed to have taken place because a decision was not made within the applicable statutory time limit. This is an appeal under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) by Barque from the Tribunal’s decision, raising six questions of law via six corresponding grounds of appeal.

2    Section 21 of the Tertiary Education Quality and Standards Agency Act 2011 (Cth) (TEQSA Act) provided that registration could be granted if, inter alia, TEQSA was satisfied, and therefore if the Tribunal in its shoes was satisfied, that Barque met certain detailed and prescriptive standards relating to education provider applicants. Those standards are promulgated under s 58(1) of the TEQSA Act, the relevant version being the Higher Education Standards Framework (Threshold Standards) 2011 (Cth) (2011 Threshold Standards), which are no longer current, but still apply to Barque’s 2016 provider registration and course certification applications.

3    In particular, the 2011 Threshold Standards include “Provider Registration Standards” (PRS) in Chapter 1, divided into four sections, addressing, in relation to a provider, standing, financial viability and sustainability, corporate and academic governance, and primacy of academic quality and integrity. It was common ground that, in order to be eligible for registration, TEQSA, and thus the Tribunal, had to be satisfied that an education provider met all applicable PRS criteria. The Tribunal was not satisfied that Barque met the following PRS criteria:

(1)    In relation to financial viability and sustainability in section 2:

The higher education provider has the financial resources and financial management capacity to sustain higher education operations consistent with the Provider Registration Standards.

2.1    The higher education provider is financially viable and has the capacity to sustain quality in its current and planned higher education operations, using realistic projections of student demand and income from all sources.

2.2    The higher education provider applies, and demonstrates the capacity to continue to apply, sufficient financial resources to ensure the achievement of its higher education objectives.

…

(2)    In relation corporate and academic governance in section 3:

The higher education provider shows sound corporate and academic governance of its higher education operations.

...

3.7    The higher education provider’s corporate governing body protects the academic integrity and quality of the higher education provider’s higher education operations through academic governance arrangements that provide a clear and discernible separation between corporate and academic governance, including a properly constituted academic board and course advisory committees.

…

4    For convenience, these reasons will refer to the above standards the subject of this appeal, and to other standards raised during the course of the hearing before the Tribunal and in this appeal, as PRS 2.1, PRS 2.2, PRS 3.7, and so on.

The competing cases before the Tribunal

5    Because there was only a deemed decision by TEQSA to refuse registration, the merits review application before the Tribunal was the first occasion upon which the applications for registration and for course accreditation were formally assessed by way of merits review, although it seems they were at least considered in part in a prior Tribunal decision: Barque Institute Pty Ltd and Tertiary Education Quality and Standards Agency [2018] AATA 314. Because the application for registration failed, the Tribunal did not determine the course accreditation application. However, Barque places reliance on TEQSA’s stance in relation to the course accreditation application in aid of aspects of its case on denial of procedural fairness. The summary that follows will focus on the registration application, and the course accreditation issue will be addressed in the consideration of the grounds of appeal that are asserted to be affected by it.

Overview of the Tribunal’s reasons

6    After briefly explaining the economic context and regulatory framework that formed the social and legal backdrops to Barque’s applications for registration as a higher education provider and accreditation, the Tribunal turned to considering whether Barque satisfied the 2011 Threshold Standards. The Tribunal took a realistic view of the riskiness of any new business venture. It noted the necessarily high practical and regulatory barriers to entry to the Australian higher education market, its unique structural features, and the distinction in operation between higher education providers and other businesses because of these features.

7    In relation to PRS 2.1, the Tribunal was not satisfied as to Barque’s financial viability and capacity to sustain quality in light of realistic projections of income and demand. Its concerns arose primarily in relation to the unlikelihood of certain assumptions forming the basis for Barque’s financial projections. For example, a significant percentage of Barque’s projected enrolments in its first year of operation were attributable to a course for which Barque did not have accreditation at the time of application, and it provided ‘sensitised’ forecasts which assumed the receipt of FEE-HELP revenue from the Commonwealth for which Barque had not yet sought or received approval. Assertions about the affordability of a full-fee option and market research about increasing demand from students for management and business studies, were also sources of scepticism by the Tribunal. So too were assumptions about Barque’s ability to attract fee-paying overseas students to a new program without an established brand, and about its likelihood of becoming eligible for FEE-HELP within a short period of commencing operations due to the consideration given in that regime to the experience of a provider.

8    Given its concerns about Barque’s viability to sustain quality in circumstances where the Tribunal was not satisfied with the reasonableness of some of the assumptions forming the bases for Barque’s financial projections, the Tribunal was not satisfied that Barque had satisfied PRS 2.1. In relation to PRS 2.2, the Tribunal was similarly not satisfied that Barque had demonstrated the sufficiency of the financial resources available to it. This was because of concerns about the realism of Barque’s figures and assumptions, rather than concerns about Barque’s general financial competence.

9    In relation to s 3 of the Provider Registration Standards, which deals with the soundness of the corporate and academic governance of the operations of a higher education provide, the Tribunal articulated a number of concerns. The Tribunal had concerns about the makeup and expertise of Barque’s corporate governing body (PRS 3.2), the extent of the overlap between governance and management responsibilities of Barque’s corporate governance arrangements (PRS 3.3), its corporate governing body’s ability to mitigate risks (PRS 3.4), and the oversight of delegations (PRS 3.5). In reasons dealt with in greater detail below, the Tribunal determined that it was not satisfied that Barque’s academic governance arrangements provided a clear and discernible separation between corporate and academic governance (PRS 3.7), largely because of the small number of individuals in which power within the organisation was vested and because it suspected that the academic senate, as it currently stood, would be perceived as weak in the absence of a core of academic staff protected by institutional arrangements to enable them to have functional autonomy and independence from management.

10    While ultimately satisfied that Barque had met two of the standards contained within s 3, namely PRS 3.3 and PRS 3.8, the Tribunal concluded that, at least in relation to PRS 3.8, Barque would need to give undertakings. It was not satisfied that Barque met PRS 3.2, PRS 3.4 or PRS 3.5, but in relation to the latter two felt that its concerns may be able to be addressed by undertakings. In affirming the reviewable deemed decision to refuse registration, the Tribunal characterised PRS 2.1, 2.2 and 3.7 as the most problematic for Barque’s application.

The grounds of appeal

11    It is better to reproduce the grounds of appeal in full as they are both detailed and nuanced:

[1]    Did the Tribunal fail to provide the applicant procedural fairness, and thereby commit legal error, by concluding at [54] that the applicant failed to satisfy Provider Registration Standards 2.1 and 2.2 on the grounds that:

 a.    the applicant’s enrolment projections were based on questionable assumptions;

 b.    those enrolment projections were not informed by sufficient market research; and

 c.    more financial resources should be made available to cover the eventualities;

in circumstances where the respondent had conceded, or alternatively did not dispute, that the applicant satisfied Provider Course Accreditation Standard 1.2, which relevantly required that there were robust internal processes for the design and approval of the course of study, which “provide[d] realistic projections of the demand and resources required for the course of study”?

[2]    Did the Tribunal fail to provide the applicant procedural fairness, or make a finding unsupported by any evidence, and thereby commit legal error, by finding, for the purposes of Provider Registration Standards 2.1 and 2.2:

a.    at [52] that “Barque’s own figures suggest losses in the order of $2 million in the first two years if it is not approved for FEE-Help”;

b.    at [52] that, even if the committed funding of $1.3 million were faithfully supplied, it was “unclear whether that would be enough, or whether alternative sources of funding would be necessary and available”; and

c.    at [54] that more financial resources should be made available to cover the eventualities;

in circumstances where the respondent had notified the Tribunal by email dated 9 November 2018 – some four months after the hearing concluded on 3 July 2018 and approximately 14 months before the Tribunal delivered its reasons – that the respondent withdrew its erroneous submission to the effect that the applicant’s own figures suggested losses in the order of $2 million in the first two years if the applicant were not approved for FEE-Help under the Higher Education Support Act 2003 (Cth).

[3]    Did the Tribunal fail to provide the applicant procedural fairness, or make a finding unsupported by any evidence, and thereby commit legal error, by finding, for the purposes of Provider Registration Standard 3.7:

a.    at [94] that two named individuals were “the only individuals who appear to have been appointed to the academic senate”;

b.    at [94] that this “suggests the criteria for membership [of the academic senate] are not being applied”; and

c.    at [94] that “[i]f the criteria are not being applied, it is unclear how the board can argue there is a properly constituted academic senate”;

in circumstances where the respondent had acknowledged that the applicant’s academic senate had four – not two – members (Respondent’s Closing Submissions dated 11 July 2018 at [62]) and the evidence established that the members of the academic senate included persons not involved in corporate governance?

[4]    Did the Tribunal fail to provide the applicant procedural fairness, and thereby commit legal error, by concluding at [96] that the applicant failed to satisfy Provider Registration Standard 3.7 on the grounds that:

a.    the organisational arrangements contemplated that the academic senate would report to the board and provide the governing body with advice;

b.    the Tribunal “suspect[ed] [the] academic senate will be perceived as being weak while Barque does not have a core of academic staff who enjoy institutional arrangements that make them comfortable enough to speak truth to power”; and

c.    power within the organisation was “so clearly vested in a handful of individuals”, such that the applicant had “a particular challenge when it comes to communicating ‘a clear and discernible separation between corporate and academic governance’”;

in circumstances where the respondent had conceded, or alternatively did not dispute, that the applicant satisfied Provider Registration Standard 4.2 (concerning the promotion and protection of free intellectual inquiry and expression in learning, teaching, and research activities) and Provider Registration Standard 4.3 (concerning the existence of “effective policies and measures” to protect academic integrity)?

[5]    Did the Tribunal fail to apply the correct legal test by failing to comply with the principles identified in s 13 of the Tertiary Education Quality and Standards Agency Act 2011 (Cth), namely:

a.    the principle of regulatory necessity;

b.    the principle of reflecting risk; and

c.    the principle of proportionate regulation;

in concluding at [93] to [97] that the applicant had not satisfied Provider Registration Standard 3.7?

[6]    Did the Tribunal err at [94] to [96] in its interpretation and application of the expression “properly constituted academic board” in Provider Registration Standard 3.7?

12    TEQSA denies that any of these grounds of appeal have any substance.

Ground 1 – denial of procedural fairness and resulting legal error in concluding that Barque failed to satisfy PRS 2.1 and 2.2

13    This ground of appeal overtly turns on the conclusions reached at [54] of the Tribunal’s reasons:

I am not satisfied Barque meets Provider Registration Standards 2.1 and 2.2. I agree each of standards 2.1 and 2.2 need to be considered separately. But if I adopted a different approach and considered whether I was satisfied Barque met s 2 of the Provider Registration Standards having regard to the entirety of sub-sections 2.1-2.5, Barque would still not succeed. I make that finding even though the Agency does not dispute Barque meets the requirements contemplated in ss 2.3-2.5 which focus on the competence and efficacy of its financial management and systems. The problem is not one of financial competence. The problem, rather, is the questionable assumptions Barque makes about the start-up phase. At a minimum, more market research is required to inform the projections, or more financial resources should be made available to cover the eventualities. I do not accept that expecting an applicant for registration to undertake that sort of preparatory work would offend any of the regulatory principles referred to in Part 2 of the TEQSA Act.

14    Barque also relies on the Tribunal’s reasons at [45]-[47] and [52] which lead to the conclusions reached in [54] above. All of those paragraphs are required to be considered in the context of all of the reasons dealing with PRS 2.1 and PRS 2.2 from [31] to [54].

15    The asserted denial of procedural fairness turns on the stance taken by TEQSA in relation to Barque’s parallel application for course accreditation. In particular it turns on one of the standards applicable to that application, being Provider Course Accreditation Standard 1.2 (PCAS 1.2), which was in Chapter 3 of the 2011 Threshold Standards. PCAS 1.2 was as follows:

Section 1 Course design is appropriate and meets the Qualification Standards

…

1.2    There are robust internal processes for design and approval of the course of study, which:

•    provide realistic projections of the demand and resources required for the course of study;

•    take account of external standards and requirements, e.g. published discipline standards, professional accreditation, input from relevant external stakeholders, and comparable standards at other higher education providers; and,

•    provide for appropriate development of key graduate attributes in students including English language proficiency.

…

16    TEQSA’s statement of facts, issues and contentions included the following introductory four paragraphs:

[1]    This matter concerns decisions made by the respondent … to reject applications made by the applicant (‘Barque’), to:

a.    be registered as a higher education provider under the Tertiary Education Quality and Standards Act 2011 (‘the Act’) (the ‘registration application’); and

b.    have its MBA (Advanced) course accredited under the Act (the ‘accreditation application’).

[2]    TEQSA contends that the questions for the Tribunal are as follows:

a.    What is the task for the Tribunal in exercising its jurisdiction to review the decisions to reject Barque’s registration and accreditation applications?

b.    Does Barque meet the relevant provisions of standards made under s. 58(1) of the Act being provider registration standards 2.1, 2.2, 3.2, 3.3, 3.4, 3.5, 3.6, 3.7 and 3.8 of the Higher Education Standards Framework (Threshold Standards) 2011 (‘the standards’) such that the Tribunal, standing in the shoes of TEQSA, should grant Barque’s registration application?

c.    If the answer to (b) is yes, has Barque validly applied for accreditation of the Master in Business Administration; Graduate Diploma in Management and Graduate Certificate in Business courses within the MBA (Advanced) course (‘the nested courses’)?

[2][sic] TEQSA contends that the Tribunal should answer these questions as follows:

a.    To reach the correct or preferable decision on the evidence before it.

b.    No.

c.    Does not arise (unless (b) is answered “yes”), but no.

[3]    If the Tribunal approves Barque’s registration application, TEQSA neither consents nor opposes Barque’s accreditation application and makes no submissions in that regard.

[4]    The remainder of this statement of facts, issues and contentions is structured as follows:

a.    section 1 sets out relevant statutory background;

b.    section 2 sets out relevant factual background;

c.    section 3 sets out TEQSA’s summary contentions in relation to the issues identified at paragraph 2 above, by reference to key aspects of the evidence which TEQSA contends is relevant to each of those issues.

17    Barque asserts that by [3] of the above statement, TEQSA conceded, or did not dispute, that Barque’s proposed MBA (Advanced) course satisfied all the applicable Provider Course Accreditation Standards, including PCAS 1.2, and in particular the need for “robust internal processes for design and approval of the course of study, which … provide realistic projections of the demand and resources required for the course of study”. Barque asserts that it was therefore common ground before the Tribunal that, as a consequence of its robust internal processes for design and approval, its MBA (Advanced) course accreditation application was supported by realistic projections of the demand and resources required for that course. It submits that this asserted common ground was not surprising, because the accreditation application was supported by substantial market research, publicly available data maintained by the Commonwealth Department of Education and Training identifying increased demand for such courses, and reports from TEQSA identifying such demand and the prospects of such courses being profitable due to the ability to charge higher fees.

18    Barque therefore asserts that it was denied procedural fairness because the adverse decision in relation to PRS 2.1 and PRS 2.2 going to financial viability and sustainability had been effectively conceded by TEQSA, and it was not given an opportunity to run a positive case to the contrary which could have made a difference. It also asserts that it was denied procedural fairness because the case that it did run was not properly understood on this point. Barque supports this argument by pointing to the Tribunal’s reasoning at [41] and [43] where the Tribunal instead relied upon projections based upon what was described as more accurate assumptions about such enrolments. These included the assumptions that only the MBA (Advanced) course would be offered in the first year, and that a Masters (sic) of Design course (for which accreditation had not been sought) would not be offered that year. Barque asserts that the formula of words in [3] of TEQSA’s statement of facts, issues and contentions, the focus by TEQSA on the Masters of Design course and FEE-HELP issues, and TEQSA not embarking upon a wider attack on the projections for the MBA (Advanced) course, meant that it presented its case in response to that approach.

19    Barque asserts that, despite what it characterises as this confined area of dispute, the Tribunal, without notice, made wide-ranging adverse findings at [45]-[47], [52] and [54], without adverting to the asserted common ground in relation to PCAS 1.2 and without analysing the detail of the assumptions supporting the MBA (Advanced) course projections. These assumptions contained in an annexure cited in Barque’s submissions had conservatively estimated enrolment of as few as 22 international students, being a very small proportion of the relevant market. In making this assertion, Barque relies upon O’Sullivan v Australian Securities and Investments Commission [2018] FCA 228; 74 AAR 268; 160 ALD 233 at [2]-[4] as authority for the proposition that a failure to respond to substantial clearly articulated arguments amounts to a denial of procedural fairness.

20    Barque asserts that the foregoing is sufficient to make good this ground, but if more is needed, it proceeds as follows. Had it been on notice that its case had not been properly understood, it is objectively likely, according to Barque, that it would have:

(1)    made oral submissions taking the Tribunal through its written submissions of 15 May 2018 which specifically dealt with the PCAS issues and associated evidence;

(2)    taken the Tribunal through each of the assumptions made in support of the projections about its MBA (Advanced) course; produced evidence and made submissions to demonstrate the reliability of those assumptions;

(3)    adduced evidence of businesses that loan money (in competition with FEE-HELP) specifically to students to undertake masters degrees; and

(4)    adduced more evidence to substantiate the existence and nature of student demand for courses like the MBA (Advanced).

21    TEQSA takes issue with the characterisation of [3] of its statement of facts, issues and contentions as providing the basis for the common ground asserted by Barque, so as to be capable of giving rise to any denial of procedural fairness. Rather, it contends that paragraph meant nothing more than what its plain words conveyed. It contends that this paragraph clearly conveyed that if – in context, if and only if – the Tribunal approved Barque’s provider registration application, the accreditation application for the MBA (Advanced) course would not be consented to or opposed. That stance is explained by TEQSA as reflecting the logic that, if the Tribunal accepted that PRS 2.1 and PRS 2.2 had been met, its contrary argument that Barque had not provided realistic projections of demand could not have been accepted. If that point was reached, that conclusion would likely flow through to PCAS 1.2. The substance of TEQSA’s argument is that this acceptance of practical reality could not be inverted into an acceptance that Barque had provided realistic projections of demand, because that was overtly contested.

22    TEQSA further argues in the alternative that even if, contrary to its primary position, Barque had a proper basis to misapprehend that TEQSA’s acceptance of reality meant that there was not a live issue as to whether realistic projections of student demand had been provided, there was no practical injustice as was required to be demonstrated following Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 per Gleeson CJ at [37]-[38], adopted in Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 at [36] and [57]. That is because in the immediately preceding [2(b)] of TEQSA’s statement of facts, issues and contentions, reproduced at [16] above, it had been made abundantly clear that it regarded neither PRS 2.1 or PRS 2.2 as having been met, making this a clear and express issue. Moreover, TEQSA points to the following features of the Tribunal’s reasons and the way in which Barque conducted its case:

(1)    The Tribunal at [6] correctly identified and understood the effect of the stance reflected in [3] of TEQSA’s statement of facts, issues and contentions.

(2)    The Tribunal expressly recognised this stance at [39]:

The Agency said Barque had not provided ‘realistic projections’ of student income and demand that showed it was financially viable and had the capacity to sustain quality in current and planned higher education operations. The Agency’s statement of facts, issues and contentions gave two examples that were said to illustrate its central point.

(3)    Barque expressly addressed this issue:

(a)    in its pre-hearing outline of submissions dated 29 June 2018 at [5]-[14], which detailed overall how it asserted it met PRS 2.1 and PRS 2.2, including by reference to its MBA (Advanced) course and the Masters of Design course; and

(b)    in its detailed post-hearing supplementary submissions (345 paragraphs, 79 pages) dated 16 July 2018, which addressed PRS 2.1 at [77]-[126], with a particular focus on its MBA (Advanced) course as well as the Masters of Design course and which addressed PRS 2.2 at [127]-[143], with both parts including detailed descriptions of the documentary evidence it advanced of compliance, and why it contended TEQSA’s criticisms were misplaced.

23    The fatal flaw in Barque’s argument is that [3] of TEQSA’s statement of facts, issues and contentions cannot be contorted to say and mean more than the plain words deployed convey, especially in the context of the question posed as to whether Barque met, inter alia, PRS 2.1 and PRS 2.2 in [2(b)], and answered by the immediately following second [2(b)]. TEQSA, by the use of the qualifier “if”, was conveying no more than that it was accepting the practical reality that if it failed in relation to it contention that PRS 2.1 and PRS 2.2 had not been met, this meant that it would also likely have to fail as to its contention that PCAS 1.2 had not been met. It did not, and could not reasonably be understood to, amount to any concession that PCAS 1.2 was otherwise satisfied. I therefore expressly reject Barque’s submission in reply to the effect that this is to be put to one side as mere linguistic formulation, with its meaning to be adjusted in some way to accommodate its (now stated) understanding of what was being submitted and how it chose to run its case before the Tribunal.

24    In any event, Barque’s pre- and post-hearing submissions of 29 June 2018 and 16 July 2018 make it impossible to accept that this aspect of PRS 2.1 and PRS 2.2 was genuinely, or at least reasonably, understood not to be in dispute. It is not to the point that Barque now appreciates that it could have made a better case in relation to PCAS 1.2 so as to provide better support for the contested case as to whether PRS 2.1 and PRS 2.2 were satisfied. Nor do I accept, as suggested in Barque’s submissions in reply, that it was deprived of any fair opportunity to ensure that its submissions were properly understood. For completeness, I do not accept that TEQSA’s case in relation to those two standards was confined to the Masters of Design course and the issue of FEE-HELP.

25    It follows that ground 1 must fail.

Ground 2 – legal error, denial of procedural fairness and making findings unsupported by any evidence in making adverse findings for the purposes of PRS 2.1 and PRS 2.2

26    This ground turns on a submission made by TEQSA, which Barque characterises as having been withdrawn after the Tribunal had reserved its decision. The original TEQSA submission was that Barque’s own figures suggested that it would make losses in the order of $2 million in the first two years of operation if it was not approved for students to receive loans under the federal government’s FEE-HELP scheme. This ground relies upon [52] of the Tribunal’s reasons, and especially the last sentence:

The short point is that Barque has modest ambitions, particularly at the outset, but it also has relatively limited financial resources available to achieve those ambitions. Those resources are not so significant that they allow a significant margin for error in performance against the projections – but as I have already explained, there is reason to be sceptical about the reasonableness and reliability of those projections in the first place. Barque’s claim in the outline of submissions that “it is almost inconceivable that Barque will require funding beyond the $1.3m that Mr Michael Stacey is prepared to commit to the first two years of operations” is troubling because a more sanguine assessment of the risks may be required. The Agency points out Barque’s own figures suggest losses in the order of $2 million in the first two years if it is not approved for FEE-Help; even if [Mr Stacey] were to faithfully supply the resources he has outlined, it is unclear whether that would be enough, or whether alternative sources of funding would be necessary and available.

27    TEQSA’s further supplementary submissions dated 23 October 2018 stated, at [22], that if Barque did not obtain approval to receive FEE-HELP, there would be “on Barque’s own sensitised forecasts, revenue shortfalls amounting to at least $2 million over the first 2 years”. It is this submission that is referred to in the last sentence of [52] of the Tribunal’s reasons, reproduced above. However, in a subsequent email sent to the Tribunal over a year later, on 9 November 2019, TEQSA advised this passage contained a typographical error in that the reference to “the first 2 years” should have been a reference to “the first 3 years” (emphasis added). This correction was described in the email as being consistent with TEQSA’s prior supplementary submissions (dated 11 July 2018) at [25] which asserted “an absence of FEE-HELP revenue would leave a revenue hole of in excess of $2 million over the first 3 years of Barque’s operations”.

28    Barque submits that the effect of the 9 November 2019 email from TEQSA was that it was an unequivocal retraction of the earlier erroneous submission, which was nonetheless accepted by the Tribunal in its original form by failing to advert to the correction. This is said to be a denial of procedural fairness, because Barque was entitled to assume that the retracted submission – that is, the reference to “2” years rather than “3” years – would not be acted upon by the Tribunal. I pause to observe that it is rather overstating what occurred to describe a typographical correction as a retraction or withdrawal of a submission, a mischaracterisation upon which considerable reliance is placed by Barque.

29    Barque submits in the alternative that the “finding” in the Tribunal’s reasons at [52] as to “two” years was a finding or inference based on no evidence because there was no relevant and probative evidence capable of supporting it, so that it amounted to an error of law. Barque submits that the error was critical to the outcome of the Tribunal’s consideration of PRS 2.1 and PRS 2.2 because it occurred in the penultimate paragraph setting out its substantive reasoning on those two standards, leading directly to the adverse conclusion at [54]. That conclusion, Barque submits, turned on the Tribunal’s balancing its views of, respectively, enrolment and revenue projections and the financial resources available to cover the eventualities. According to Barque, the Tribunal’s erroneous finding at [52] thereby fatally infected that exercise.

30    Further, and in support of that alternative argument, Barque points to the reference by the Tribunal at [49] to evidence which indicated the ability and intention of one of its key backers, Mr Michael Stacey, to provide financial resources to it in excess of $1.3 million over the first two years of operation. The point apparently being made is that the third year would still be in hand to cover the gap between the $1.3 million in support in the first two years, and the shortfall of $2 million over the first three years. This is said to fatally undercut the Tribunal’s findings:

(1)    at [52] that even if the committed funding of $1.3 million was faithfully supplied it was “unclear whether that would be enough, or whether alternative sources of funding would be necessary and available”; and

(2)    at [54] that more financial resources should be made available to cover the eventualities.

31    It is plain that the Tribunal overlooked the change in TEQSA’s submissions from “2” years to “3” years, by continuing to refer at [52] to “two” years, at least in relation to the process of editing and proofing its reasons. The live question is whether this was a vitiating error, either by way of a denial of procedural fairness, or by way of making a finding made without evidence. TEQSA submits that no legal error, or at least no material legal error, arose from this oversight because of the following:

(1)    The Tribunal noted, erroneously, the original submission duration of two years, rather than the corrected submission duration of three years, but neither overtly accepted that submission, nor made any finding of its own to that effect. The dispositive findings rested on the more fundamental matters outlined below, suggesting that this rose no higher than recording the submission in an illustrative way.

(2)    To the extent that an error was made (implicitly going beyond a typographical error), it was factual rather than legal in nature, which is insufficient to make good the no evidence aspect of this ground, because mere misapprehension of the effect of evidence is not enough. TEQSA relies upon the well-established principles stated by Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356, which, it may be observed, has been cited and followed in innumerable judgments ever since.

(3)    Identifying a factual error does not, without more, make good a ground of denial of procedural fairness, especially in the context of s 44(2) of the Administrative Appeals Tribunal Act 1975 (Cth). An appeal such as this does not extend to “mere questions of fact”, even though the right of appeal on a question of law does not preclude mixed questions of fact and law, nor require that there be a pure question of law, citing the unanimous decision of a five-member Full Court in Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 at [192].

(4)    The assertion of a denial of procedural fairness overstates the obligation insofar as Barque seems to suggest that it needed more than to be given an opportunity to ascertain the relevant issues to be addressed and be put on notice of the “nature and content of adverse material”. This is the way in which the core obligation of procedural fairness was described in the much-cited passage in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited (1994) 49 FCR 576 at 590-1, quoted with approval in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [32].

(5)    In any event, the asserted error was not of such moment as to be material because the Tribunal’s key concern in relation to Barque’s financial viability was the reasonableness of the assumptions upon which its projections were based. This concern was reinforced by the limited amount and contingent nature of the additional financial resources available to it by way of a director’s loan from Mr Stacey. The Tribunal found that either more research was needed to inform the soundness of the projections made, or more resources needed to be available to cover any eventualities that could arise. This finding was not dependant on the specific quantum of losses that might occur or the specific timeframe in which they might arise, such as three years, rather than two years.

32    I accept and prefer the submissions of TEQSA. If the factual error in [52] of the Tribunal’s reasons had been corrected, rather than left uncorrected, so that the last sentence referred to “first three years” instead of “first two years”, it is impossible to accept that this change would have constituted any material change so that it could possibly have made any difference to the outcome. The substance of Barque’s case on this ground depends upon treating the Tribunal’s reasoning as amounting to little more than crude mathematics. Yet a careful, and not even especially beneficial, reading of the Tribunal’s reasons reveals that this was not the approach taken.

33    The Tribunal was concerned about the true substance of Barque’s financial viability, and in particular the robustness of the assumptions upon which its projections were based. Viewed in this way, the oversight in relation to TEQSA’s submission being corrected to refer to three years instead of two years could not possibly have made any difference as it was, at the most, a limited matter of degree. The substance of the concern cannot reasonably be seen to turn on the difference between a shortfall in revenue over two years, rather than over three years, and cannot reasonably be seen to be materially different upon that limited and rather mechanical basis. Accordingly, I am comfortably satisfied that there was no denial of procedural fairness in that oversight.

34    In relation to the alternative case based on an asserted finding made without evidence, the only finding was as to the content of a submission made by TEQSA, which was recorded incorrectly by reason of evidently overlooking a typographical correction, or at least failing to pick that up in the proofing and editing process. This alternative aspect fails at the first hurdle of establishing a relevant finding was made. Even if that was not so, and the recording of TEQSA’s submission does constitute a finding, this treats such an obvious error in a mechanical and artificial way, so that even if the recording of that submission could be characterised as a finding, it would not be read as more than a mere factual error of a typographical nature, falling short of changing the substance of what was decided and why. That error simply does not bear the weight that Barque attributes to it.

35    It follows that ground 2 must fail.

Ground 3 – legal error, denial of procedural fairness and making findings unsupported by any evidence in making adverse findings for the purposes of PRS 3.7

36    PRS 3.7 expressly requires a “clear and discernible separation between corporate and academic governance”. This includes, but is not confined to, requiring “a properly constituted academic board and course advisory committees”.

37    In its supplementary submissions, TEQSA said the following about PRS 3.7 (omitting footnotes):

Provider Registration Standard 3.7

[59]    The terms of this standard are annexed to TEQSA’s [statement of facts, issues and contentions]. TEQSA has contended (among other things) that Barque has failed to meet this Standard because Barque’s academic senate, being the principal academic body of Barque Institute, is not, contrary to the constitution of the academic senate, sufficiently diverse and independent of Barque’s board.

[60]    In response, Barque has contended, among other things, that TEQSA’s requirements would impose an ‘intolerable’ burden on aspiring higher education providers and that TEQSA’s submissions illustrate that it is (impermissibly) approaching Barque as if it were an existing higher education provider.

[61]    There is no doubt that compliance with this Standard imposes a burden upon prospective higher education providers. For the reasons set out at paragraphs 3-16, however, that is precisely what is contemplated by the Standards read with the Act. The cost of obtaining registration as a higher education provider under the Act is compliance with the Standards. There is nothing in the Act or otherwise that would support the proposition that these Standards, including Provider Registration Standard 3.7, are to have some sort of attenuated operation upon prospective providers.

[62]    Turning to how Barque’s academic senate has functioned:

a.    the academic senate is currently comprised of 4 members, 2 of whom (Michael Stacey and Heico Wesselius) are also members of the board;

b.    the first of two meetings of the academic senate was attended by three persons, two of whom (Mr Michael Stacey (also then the Institute Director) and Mr Wesselius) are members of the board;

c.    the second of two meetings of the academic senate was attended by four persons, two of whom were, at the time, board members (Mr Wesselius, Mr Jonathan Stacey).

[63]    This operation is not consistent with the constitution of the academic senate. Nor does it achieve what the Standard requires.

38    The Tribunal addressed PRS 3.7 as follows (emphasis in original):

[93]    Barque points to documents that establish separate arrangements for corporate and academic governance – most obviously the board resolution to establish an academic senate which includes delegation of all academic responsibilities: exhibit one at p 1198. The academic senate is governed by its own constitution (reproduced in exhibit one at p 4947) and reports to the board. The board also established the academic quality and integrity committee which reports to the academic senate (exhibit one at p 5507). That quality and integrity committee also acts as the course advisory committee: exhibit one at p 1184. The board also established the industry council (exhibit one at p 1180) which provides advice to the quality and integrity committee (exhibit one at p 5443).

[94]    The Agency points out in its statement of facts, issues and contentions that it had only been provided with minutes of one meeting of academic senate, and that meeting was attended by Mr Michael Stacey and Mr Wesselius. The constitution of academic senate includes criteria for membership (exhibit one at p 4953) which appear to reflect the sort of balance between executives and staff and student representatives that the Agency suggests is relevant in its own guidance: see exhibit 6, BAE4 at p 152. But the fact Mr Stacey and Mr Wesselius were the only attendees at the [first] meeting – and the only individuals who appear to have been appointed to the academic senate – suggests the criteria for membership are not being applied. If the criteria are not being applied, it is unclear how the board can argue there is a properly constituted academic senate.

[95]    Barque points out that it has not commenced operations, so it should not be judged because the machinery of academic senate is yet to be fully engaged. There is something to that, but the standard does require that the governing body demonstrate what it is doing to protect academic quality and integrity.

[96]    Even if I look past the fact the arrangements are yet to be realised, I remain uneasy about whether Barque has (or likely could) satisfy the standard contained in s 3.7. My concern arises in part from the organisational arrangements which contemplate academic senate reporting to the board and providing the governing body with advice. At one level, that arrangement is unexceptional: the board is the governing body, after all. It is ultimately responsible for the entire business. But even allowing for that fact, the status of academic senate must be handled carefully. It must enjoy and be seen to enjoy a measure of functional autonomy and independence from management so it is able to speak authoritatively on issues that go to academic integrity. I suspect academic senate will be perceived as being weak while Barque does not have a core of academic staff who enjoy institutional arrangements that make them comfortable enough to speak truth to power. I do not mean to suggest Barque must inevitably embrace employment arrangements that incorporate traditional concepts like tenure. I also acknowledge it has produced a policy on freedom of intellectual enquiry (exhibit one at p 5181) and that it has gone to some lengths to establish regular policies and processes that protect and empower stakeholders to varying degrees. But I have also explained that Barque is a small organisation that bears many of the features of a family business. The fact that power within the organisation is so clearly vested in a handful of individuals means Barque has a particular challenge when it comes to communicating “a clear and discernible separation between corporate and academic governance”. It is not clear whether Barque has done enough in this regard, or what else it might do.

[97]    In all the circumstances, I am not satisfied Barque meets the standard in s 3.7.

39    This ground depends upon extracting a portion of the above reasons and subjecting it to close scrutiny. In particular, Barque asserts that TEQSA’s submissions, reproduced above, left no doubt that its academic senate had four members, that its first meeting was attended by three persons, and that its second meeting was attended by four persons. Its complaint is that this is not reflected in the Tribunal’s summary of TEQSA’s statement of facts, issues and contentions at [94] of its reasons reproduced above, and in particular the reference to only two members of the academic senate attending its first meeting. Barque asserts that this departure from TEQSA’s written submissions without notice to it constitutes a denial of procedural fairness and a finding made without evidence.

40    That basis for asserting a denial of procedural fairness is, taken at face value, a novel one. Taken literally, it requires that an administrative decision maker reveal its thought processes, including as to its assessment of evidence and other material before it, a stance that has been firmly rejected on many occasions over the past half century or so. Not only this, but it represents a procedural fairness requirement to do so not just in relation to that party’s submissions, but also in relation to an opposing party’s submissions: see Alphaone at 591 and the authority there cited, especially the passage quoted from F Hoffman-La Roche and Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369. As the Full Court pointed out in Alphaone after that quote from Hoffman-La Roche, “[a] person likely to be affected by an administrative decision to which requirements of procedural fairness apply can support his or her case by appropriate information but cannot complain if it is not accepted”. It is difficult to see why a different obligation would apply if, rather than such material being rejected, a factual error is made in relation to it. There is also no suggestion that the factual error made, assuming it is properly characterised as such, rises to the level of legal unreasonableness in this case.

41    In relation to the “no evidence” aspect, Barque submits that there was no evidence before the Tribunal which supports a finding that its academic senate comprised only two individuals, or a finding as to who they were. Barque points to the different state of affairs that was established by minutes of the academic senate meetings, seemingly suggesting that this elevates any factual error that might have been made in this regard to a basis for a “no evidence” ground of legal error. This too is at odds with the usual understanding of the “no evidence” ground of review, creating a basis for legal error on there being no evidence for a conclusion merely because it is factually erroneous and therefore, to the extent of such an error, unsupported by any evidence. This too is a novel proposition.

42    Barque relies on these asserted errors to argue that they were material to the ultimate conclusion reached that the Tribunal was not satisfied that it met PRS 3.7. Barque submits that once the erroneous findings are removed, there was no rational basis for the rest of the conclusions in [94] of the Tribunal’s reasons, including there being no foundation for considering that the criteria for membership of the academic senate were not being applied, and no foundation for the suggestion that, by reason of those criteria not being applied, it was unclear how it could be argued that there was a properly constituted academic senate. This is then said to infect the conclusion at [96] that “power within the organisation is so clearly vested in a handful of individuals”, which is said to be the basis for the ultimate conclusion that Barque had not satisfied the Tribunal that the arrangements in place provided the necessary “clear and discernible separation between corporate and academic governance”.

43    It is not apparent why that phrase should be read in that way, when the supplementary submissions of TEQSA reproduced above that are relied upon by Barque as being correct refer to the academic senate comprising of only four members, two of whom were also members of the board. Whether it was referring to the two individuals who were members of both the board and the academic senate, or to the five individuals in total who were members of either the academic senate or the board or both, the Tribunal’s reference to a handful of individuals is an apt description.

44    This ground of review is misconceived, even without rejecting the novel legal propositions upon which it relies. The most that can be said about the asserted error at [94] of the Tribunal’s reasons is that it overtly recorded the state of affairs that were contained in TEQSA’s statement of facts, issues and contentions, reflecting both an earlier point in time, and an apparent error in the number of academic senate members at that time, rather than the state of affairs that existed by the time of the closing submissions. There is no proper foundation for any suggestion that Barque was misled about this, or thwarted in any way in the presentation of its case. This does not properly advance either a claim of denial of procedural fairness or a finding made without evidence.

45    Even if that was not so, standing in isolation, the assertion that this error infected the dispositive reasoning in [97] does not withstand scrutiny. That is because the Tribunal was expressly prepared to look beyond the current arrangements, necessarily including any errors that had been made in the assessment of what those arrangements in fact were, and instead focus on the intended structure and composition of the academic senate. A careful and fair reading of [96] of the Tribunal’s reasons reveals that the prior impugned observations at [94] had little or no bearing on the determinative conclusions, and certainly fell well short of vitiating them. The Tribunal’s ultimate concern was that, even assuming that the academic senate was constituted in accordance with its constitution, it would be perceived as weak so long as Barque did not have a core of academic staff who enjoyed adequate institutional arrangements. The Tribunal expressly stated that, while addressing this did not necessarily require conventional academic employment arrangements, Barque was a small organisation bearing many of the features of a family business, which meant that it had a particular challenge in demonstrating that overall it had “clear and discernible separation between corporate and academic governance”.

46    The Tribunal therefore did not make a finding that not enough had been done, but rather it was not positively satisfied that enough had been done. Without that degree of positive satisfaction, the requirements of PRS 3.7 had not been met. That conclusion did not turn upon the initial composition of the academic senate, and therefore the numerical errors made in that respect were not material. This view of the Tribunal’s reasons is reinforced by the overall conclusion at [105], in which it is stated that Barque had not come close to satisfying PRS 3.7, and that its approach in this regard could not be met by undertakings or conditions, but rather were more problematic and needed to be rethought. This is a conclusion that goes well beyond the issues raised in support of this ground.

47    As this ground has not addressed, much less impugned, the basis upon which the adverse conclusion in relation to PRS 3.7 was reached, it must fail.

Ground 4 – error and denial of procedural fairness in concluding that Barque failed to satisfy PRS 3.7

48    This ground attacks the conclusion in relation to PRS 3.7 at [96] of the Tribunal’s reasons, reproduced at [38] above. Barque asserts, in effect, that it was not open to the Tribunal to make an adverse governance conclusion while at the same time not making an adverse conclusion, and not giving warning of this departure, on PRS 4.2 and PRS 4.3, which provided as follows:

[4.2]    The higher education provider promotes and protects free intellectual inquiry and expression in its higher education learning, teaching, and research activities.

[4.3]    The higher education provider protects academic integrity in higher education through effective policies and measures to:

•    ensure the integrity of student assessment;

•    ensure the integrity of research and research activity;

•    prevent, detect and address academic misconduct by students or staff, including cheating and plagiarism;

•    ensure that academic staff are free to make public comment on issues that lie within their area of expertise; and,

•    ensure that the awarding of multiple awards, including higher education awards offered in conjunction with another entity, protects the integrity of the higher education awards offered by the higher education provider.

49    Barque asserts, and TEQSA denies, that there was common ground before the Tribunal that it did or would promote and protect free intellectual inquiry and expression in its activities and had or would have effective policies and measures to protect academic integrity. Upon that basis, Barque asserts, in substance, that it was not open to the Tribunal to make findings, without notice, concerning the academic senate arrangements contrary to parties’ asserted common ground, and that to do so constituted a denial of procedural fairness. Barque also asserts legal error by way of a disharmonious and incoherent” reading of the standards, whereby PRS 4.2 and PRS 4.3 could be met while PRS 3.7 was not met, upon the basis that they are said to contain “substantially similar requirements”. This is said to be so because the Tribunal’s reasons for not being satisfied as to PRS 3.7 included its view that Barque’s institutional arrangements were insufficient to ensure the academic integrity, freedom and independence required by PRS 4.2 and PRS 4.3, which were in turn according to Barque not the subject of dispute between the parties.

50    TEQSA submits, and I accept, that there is no necessary inconsistency between failing to satisfy the Tribunal as to PRS 3.7 and TEQSA’s stance in relation to PRS 4.2 and PRS 4.3, even though there may be a degree of overlap insofar as both address the issue of academic integrity. Each standard was independently required to be met to the satisfaction of the Tribunal. The protection of academic integrity is advanced in different ways by PRS 3.7 as compared to PRS 4.2 and PRS 4.3, the former by governance arrangements, and the latter two by policies and other measures.

51    Doubtless failure as to one may affect success as to another, but success as to one does not necessarily dictate success as to another. That distinction was implicitly recognised by the Tribunal in expressly acknowledging that Barque had “produced a policy on freedom of intellectual inquiry … and that it [had] gone to some lengths to establish regular policies and processes that protect and empower stakeholders to varying degrees”, going some way to satisfying PRS 4.2 and addressing at least key elements of PRS 4.3. However, this was found to fall short of demonstrating the necessary “clear and discernible separation between corporate and academic governance”. Far from it being demonstrated that the Tribunal engaging in a “disharmonious and incoherent” reading of the standards, I am satisfied that the important distinction between policies and other measures on the one hand, and governance structures on the other, was both appreciated and applied by the Tribunal. By reason of that distinction, which therefore did not entail making any implicit adverse finding in relation to PRS 4.2 or PRS 4.3, it has not been demonstrated that there was any failure to afford procedural fairness on this issue. I therefore do not need to reach any concluded view as to whether there was any common ground on those standards, although I am inclined to the view that Barque has overstated the situation in that regard.

52    It follows that ground 4 must fail.

Ground 5 – failure to apply the correct legal test by failing to comply with the principles in s 13 of the TEQSA Act in concluding that Barque had not satisfied PRS 3.7

53    This ground asserts that the Tribunal, in not being satisfied that PRS 3.7 had been satisfied, failed to have regard to the principles of regulatory necessity, reflecting risk and proportional regulation mandated by s 13 of the TEQSA Act, and described in ss 14-16. The particulars to this ground reproduced at [11] above identify how that failure is said to have taken place. This ground necessarily entails establishing that the Tribunal did not take into account those principles despite expressly stating that it had done so at [9] of its reasons. This is said to be achieved by reading the text of [94] and [96] in a particular way.

54    TEQSA submits that the principles mandated by s 13 have no role to play unless the 2011 Threshold Standards are first met. Rather, the discretionary power to grant registration under s 21(1), to which the principles apply, could only be exercised upon the Tribunal being satisfied that those standards had been met. Until then, those principles have no application, because the point of exercising the power has not been reached. TEQSA supports that argument by reference to each of those principles as follows:

(1)    In relation to the principle of regulatory necessity described in s 14, the burden of meeting each of the 2011 Threshold Standards is imposed by those standards, which Barque either satisfied the Tribunal were met, or did not.

(2)    In relation to the principle of reflecting risk described in s 15, that only arose if Barque already currently met the 2011 Threshold Standards, and governed the assessment of future compliance.

(3)    In relation to the principle of proportionate regulation described in s 16, that required the exercise of the power to be carried out by reference to Barque’s history as to compliance with the 2011 Threshold Standards and risk of future non-compliance.

55    This case is not a good vehicle by which to explore any interaction between the discretionary power and the applicable threshold standards required to be met before the power may be exercised. In particular, the ability to impose conditions, or to require the giving of undertakings, in order to satisfy TESQA, and thus the Tribunal, that that standards either are met, or will be met, suggests that TEQSA’s stance may well be correct in some, perhaps most, circumstances, and quite probably in this case, but not universally. Moreover, those standards have since changed and only apply to Barque as a legacy of the timing of its applications and the prolonged period over which decisions have been made about them. It is therefore more prudent and appropriate to address each of these arguments in support of this ground upon the basis upon which they have been advanced by Barque. It will only be necessary to consider whether to decide this ground upon the more global basis suggested by TEQSA if it would otherwise succeed, based on Barque’s construction of the Tribunal’s reasons.

56    Barque asserts that the Tribunal failed to comply with the principle of regulatory necessity by burdening it more that was reasonably necessary because it reached the adverse conclusion as to governance at [96] in reliance on an expectation “revealed” by [94] that Barque would have from inception a properly constituted academic senate. That is simply not what happened, as is made abundantly clear by the express acknowledgment in [95] and by the text of [96], as analysed above in relation to ground 3. This argument is simply devoid of a factual basis and must therefore be rejected. So too must the parallel argument as to the effect of the treatment of PRS 4.2 and PRS 4.3 on PRS 3.7, which failed in relation to ground 4. There is nothing unnecessary or disproportionate in requiring both sets of standards to be satisfied, especially as they overtly seek to address academic integrity in important but different ways. The asserted failure to comply with the principle of regulatory necessity is not established.

57    Barque asserts that the Tribunal failed to comply with the principle of reflecting risk by failing to have regard to its history (s 15(1)(a)), and to matters relating to the risk of it not complying with the 2011 Threshold Standards in the future (s 15(1)(b)). Barque relies upon:

(1)    the same interpretation of [94] and [96] that has been rejected in the preceding paragraph;

(2)    the arguments advanced in relation to ground 3 which have failed;

(3)    the arguments advanced in relation to ground 4 which have failed.

58    Those arguments are relied upon to assert that the Tribunal failed to have regard to the asserted “true risk” of Barque not complying with PRS 3.7. The problem with this argument is that the Tribunal was not satisfied that PRS 3.7 had been met. In those circumstances, and without the prior arguments impugning that conclusion succeeding, it is impossible to sustain the argument that the risk was not assessed. The asserted failure to comply with the principle of reflecting risk is therefore not established.

59    Barque’s case for a failure on the part of the Tribunal to apply the principle of proportionate regulation depends at least in part upon success in relation to either of the preceding arguments. Barque asserts that affirming the deemed refusal of its registration and accreditation applications was not in proportion to any non-compliance or any risk of future non-compliance with the 2011 Threshold Standards. Barque asserts that even if some risk was found, this did not absolve the Tribunal from having regard to the principles of proportionate regulation and regulatory necessity. I am not satisfied that refusing registration by reason of not being satisfied that the mandatory standard in PRS 3.7 has been met can properly be seen to be in any way disproportionate, at least in the circumstances of this case. For this aspect of this ground to succeed in a practical way, the Tribunal would have been required, by that principle, to grant registration while not being satisfied that PRS 3.7 had been close to being satisfied. The asserted failure to comply with the principle of proportionate regulation is therefore also not established.

60    As none of the failures to comply with the mandatory principles in s 13 has been established, this ground as pleaded and argued must fail. It is therefore not necessary to decide upon TEQSA’s primary response to this ground.

Ground 6 – error by the Tribunal in its interpretation and application of the term “properly constituted academic board” in PRS 3.7

61    This ground again relies upon an assertion by Barque that the reasoning in [94] of the Tribunal’s reasons was determinative, or at least in some way indispensable, contaminating or vitiating, to the conclusion reached at [96]. For the reasons outlined above, that is not so. I nonetheless proceed to consider the substance of that ground.

62    Barque submits that while the Tribunal did not separately address what was meant by the phrase “properly constituted academic board” in PRS 3.7, it should be inferred from [94]-[96] of its reasons that it imposed or inferred limitations or minimum requirements regarding the quorum or number of members, the criteria for membership, the reporting structure and its own views as to functional autonomy and independence from management and the governing body. Barque submits that any such limitations or minimum requirements were a matter for express provision, not implication by the Tribunal.

63    This ground fails at the first threshold of establishing that the asserted and imputed finding was made in the first place. I do not accept that the Tribunal implied any limitations or minimum requirements as to what would constitute a “properly constituted academic board” for the purposes of PRS 3.7, because the conclusion reached at [96] of its reasons was based upon not being satisfied that there was a clear and discernible separation between corporate and academic governance. This did not require any conclusion to be reached as to what would or would not amount to the academic board being properly constituted. I see no sound reason to impute to the Tribunal an unnecessary and contextually irrelevant reasoning process.

Conclusion

64    As all six ground of appeal have failed, the appeal must be dismissed with costs.

Associate:

Dated:    29 January 2021