Federal Court of Australia

King Eeducational Service Pty Ltd v Chief Executive Officer of the Australian Skills Quality Authority (No 3) [2021] FCA 692

ORDERS

THE COURT ORDERS THAT:

1.    Subject to order 2, the appeal be dismissed.

2.    Subject to further order, order 1 does not come into force until 4.00 pm on 22 July 2021.

3.    The applicant pay the respondent’s costs of the appeal, including any reserved costs.

OTHER MATTERS:

The purposes of order 2 are:

(a)    to afford the applicant an opportunity, if so advised, to seek a stay of the decision pending the hearing and determination of any appeal; and

(b)    otherwise, to facilitate the orderly expiration of the stay pursuant to the orders of the Court dated 5 March 2021.

Date that entry is stamped: 24 June 2021.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1    The applicant conducts a business involving the vocational education and training of overseas students. For the purposes of conducting its business, the applicant requires registration under two Commonwealth Acts: (1) the National Vocational Education and Training Regulator Act 2011 (Cth) (NVR Act); and (2) the Education Services for Overseas Students Act 2000 (ESOS Act). See: NVR Act, s 116; ESOS Act, s 8. Vocational education and training is frequently referred to in applicable legislation and legislative instruments by the acronym, VET.

2    The applicant was first registered as a provider of vocational education and training in October 2009 by the Western Australian Training and Accreditation Council. In August 2012, it became an NVR registered training organisation under the NVR Act, and a registered provider of education and training to overseas students under the ESOS Act. Under each regime, its registration was due to expire in December 2015.

3    On 4 August 2014, the applicant applied to the Australian Skills Quality Authority (ASQA) to renew its registration under the NVR Act, and on 6 August 2014, it applied to ASQA to renew its registration under the ESOS Act. On 11 November 2015, ASQA communicated its refusal of both applications to the applicant, with the decisions to take effect on 16 December 2015. ASQA rejected both applications for renewal of registration following its completion of two audits of the applicant’s compliance with the regulatory regimes effected by the NVR Act and ESOS Act. In respect of both applications, ASQA found that the applicant “did not provide sufficient evidence to demonstrate compliance” with the relevant requisite standards.

4    On 25 November 2015, the applicant applied to the Administrative Appeals Tribunal to have ASQA’s decisions reviewed. The Tribunal made a series of orders staying ASQA’s decisions to refuse the renewal of the applicant’s registration under the NVR Act and under the ESOS Act. The consequence of those orders was that pending the Tribunal’s decision on review, the applicant continued to be registered and it continued to conduct its business.

5    The hearing of the application before the Tribunal took place over 12 days across 2016 and 2017. At the conclusion of the hearing on 7 June 2017, the Tribunal reserved its decision. On 6 March 2020, and while the Tribunal’s decision remained reserved, ASQA lodged further affidavits which the Tribunal determined to admit. That evidence concerned attendances by authorised regulatory officers of ASQA upon the applicant’s premises in January 2020 for the purposes of assessing the applicant’s compliance with the terms of relevant regulatory instruments. Subsequently, the applicant filed evidence in reply. ASQA made written submissions to the Tribunal dated 2 October 2020, and the applicant responded by written submissions dated 23 October 2020.

6    On 10 December 2020, the Tribunal published its decision. The Tribunal affirmed ASQA’s original decision to refuse the renewal of registration under the ESOS Act. In relation to ASQA’s decision under the NVR Act, the Tribunal substituted its own decision to renew the applicant’s registration under that Act, but for a period limited to three years and subject to conditions. I will refer to the Tribunal’s reasons in greater detail below.

7    Pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), the applicant appeals the Tribunal’s decision to affirm ASQA’s decision not to renew its registration under the ESOS Act. An appeal under s 44 is an appeal on a question of law, and the applicant raises three questions of law to which I will refer later in these reasons.

8    Upon the applicant commencing this appeal, I granted an interim stay, and then a stay of the Tribunal’s decision pending the determination of this appeal: King Eeducational Service Pty Ltd v Australian Skills Quality Authority [2021] FCA 42; King Eeducational Service Pty Ltd v Chief Executive Officer of the Australian Skills Quality Authority (No 2) [2021] FCA 183. Pursuant to the stay granted by this Court under s 44A(2) of the AAT Act, the applicant’s registration under the ESOS Act has continued.

9    For the reasons that follow, the applicant’s appeal will be dismissed.

The legislation

10    I will refer to the relevant provisions of the NVR Act to provide context for some aspects of the Tribunal’s reasons for its decision. I will then refer to some features of the ESOS Act, including the legislative history of the provisions that are material to the determination of the appeal.

The National VET Regulator

11    At the time of the decisions of ASQA and of the Tribunal, the National VET Regulator established by s 155 of the NVR Act consisted of a Chief Commissioner and two Commissioners. A legislative note to s 156 of the NVR Act stated that the National VET Regulator did not have a legal identity separate from the Commonwealth. Until 8 August 2020, the National VET Regulator was also known as the “Australian Skills Quality Authority” pursuant to the National Vocational Education and Training Regulator Regulations 2011 (Cth), reg 15 (originally reg 5). The same result was achieved for a period by s 155(1A) of the NVR Act which commenced operation on 1 July 2020, and was repealed on 1 January 2021. ASQA had decision-making functions under both the NVR Act and the ESOS Act in relation to the applicant’s registration. As I will identify, the statutory foundation for that function changed over time.

12    After the decisions the subject of this appeal, amendments to the NVR Act that were effected by the National Vocational Education and Training Regulator Amendment (Governance and Other Matters) Act 2020 (Cth) commenced on 1 January 2021, with the consequence that the National VET Regulator is now an individual statutory office-holder appointed pursuant to s 162 of the NVR Act. Pursuant to s 155(2) of the NVR Act as in force from 1 January 2021, the National VET Regulator may also be known as the Chief Executive Officer of the Australian Skills Quality Authority, and is named as such as the respondent to this proceeding. Under the relevant transitional provisions, a thing done by a Commissioner or Chief Commissioner prior to 1 January 2021 is taken to have been done by the National VET Regulator under the Act as now in force: National Vocational Education and Training Regulator (Transitional Provisions) Act 2011 (Cth), Sch 5, sub-item 2(1).

Registration under the NVR Act

13    As I have mentioned, ASQA was another name for the National VET Regulator established under s 155 of the NVR Act. Under s 17 of the NVR Act, ASQA was empowered to grant applications for registration as an NVR registered training organisation, including applications for renewal of registration: s 31. Under s 17(2) of the NVR Act, ASQA was required to consider whether an applicant “complies with” the VET Quality Framework, and conditions of registration set out in the Act. The VET Quality Framework was defined by s 3 of the NVR Act as referring to a number of instruments containing standards and other requirements, and the conditions of registration were set out in s 21 to s 30 of the Act.

Registration under the ESOS Act

14    The ESOS Act provides for a scheme of registration and regulation of providers of courses of education or training to overseas students. The Act contains express objects in s 4A –

4A    Objects

The principal objects of this Act are:

(a)    to provide tuition assurance, and refunds, for overseas students for courses for which they have paid; and

(b)    to protect and enhance Australia’s reputation for quality education and training services; and

(c)    to complement Australia’s migration laws by ensuring providers collect and report information relevant to the administration of the law relating to student visas.

15    It is necessary to set out the history of some of the relevant provisions of the ESOS Act relating to the registration of providers.

16    As originally enacted, and relevantly prior to amendments to the ESOS Act that commenced on 1 July 2016 (the 2016 amendments), the ESOS Act specified that the Secretary was responsible under s 9 of the Act for the registration of providers of courses of education or training to overseas students. Under s 9 the Secretary acted upon a recommendation, a certificate, and other information provided by a designated authority for a State. Relevantly, s 9(2)(d) provided –

(2)    The Secretary must register the provider if:

…

(d)    the Secretary has no reason to believe that the provider is not complying, or will not comply, with this Act or the national code; and

Note:     The Minister must notify the relevant designated authority if the Secretary has reason to believe that the provider is not complying, or will not comply, with the national code: see section 14.

…

17    With effect from 3 March 2010, s 9(2)(d) of the ESOS Act was repealed and substituted by the following –

(2)    The Secretary must register the provider if:

…

(d)    the Secretary has no reason to believe that the provider:

(i)     is not complying, or will not comply, with this Act or the national code; or

(ii)     does not have the principal purpose of providing education; or

(iii)     does not have the clearly demonstrated capacity to provide education of a satisfactory standard; and

Note:     The Secretary must notify the relevant designated authority if the Secretary has reason to believe that any of the matters set out in this paragraph apply: see section 14.

…

18    At the same time, s 9A of the ESOS Act was inserted, which provided separately for the re-registration by the Secretary of approved providers of specified courses for overseas students. Section 9A(2)(f), which related to re-registration, was in substantially the same terms as s 9(2)(d) set out above –

(2)    The Secretary must re-register the provider if:

…

(f)    the Secretary has no reason to believe that the provider:

(i)    is not complying, or will not comply, with this Act or the national code; or

(ii)    does not have the principal purpose of providing education; or

(iii)    does not have the clearly demonstrated capacity to provide education of a satisfactory standard; and

Note:     The Secretary must notify the relevant designated authority if the Secretary has reason to believe that any of the matters set out in this paragraph apply: see section 14.

…

19    Commencing 20 March 2012, a scheme of national registration of approved providers was introduced by amendments to the ESOS Act. Under these provisions, the Secretary remained responsible for registering approved providers, but did so upon a recommendation of a “designated authority” in relation to the provider. A “designated authority” was defined by s 7A of the ESOS Act as including the National VET Regulator, or ASQA, for a provider to the extent that it was an NVR registered training organisation within the meaning of the NVR Act. Section 9AB of the ESOS Act then provided for both the registration and the renewal of registration of a provider –

9AB    Registration of approved providers by Secretary

Registering approved providers

(1)    The Secretary must register an approved provider if:

(a)    a designated authority makes a recommendation under section 9AA in relation to the provider; and

…

(f)    the Secretary has no reason to believe that the provider:

(i)    is not complying, or will not comply, with this Act or the national code; or

(ii)    does not have the principal purpose of providing education; or

(iii)    does not have the clearly demonstrated capacity to provide education of a satisfactory standard; or

(iv)    is unlikely to be able to provide education of a satisfactory standard; and

Note 1:    The Secretary must notify the relevant designated authority if the Secretary has reason to believe that any of the matters set out in this paragraph apply: see section 14.

Note 2:    For when a higher education provider has the principal purpose of providing education, see section 5A.

…

(5)    To avoid doubt, the Secretary registers a provider under this section if the Secretary renews the provider’s registration.

20    At the time of ASQA’s refusal of the applicant’s application for renewal of its registration in 2015, the above provision was in force, and ASQA was a delegate of the Secretary pursuant to a delegation under s 170(2) of the ESOS Act. ASQA therefore performed two functions under s 9AA and s 9AB of the Act: (1) it made a recommendation about the renewal of the applicant’s registration under the ESOS Act; and (2) as delegate of the Secretary, by its Chief Commissioner it decided not to renew the applicant’s registration.

21    Following ASQA’s decision not to renew the applicant’s registration under the ESOS Act, the relevant provisions of the Act were amended again by the Education Services for Overseas Students Amendment (Streamlining Regulation) Act 2015 (Cth) with effect from 1 July 2016. These are the 2016 amendments to which I referred at [16] above. The Tribunal determined that in undertaking its review, it would do so by reference to the ESOS Act following the 2016 amendments. That aspect of the Tribunal’s decision was not put in issue on the appeal: the parties accepted that the Tribunal had been correct to decide the application for review under the amended legislation.

22    The 2016 amendments to the ESOS Act introduced new provisions relating to the registration of providers and the renewal of registration of registered providers. Sections 9 and 10 of the ESOS Act are concerned with the initial registration of a provider, and are in the following terms –

9    Provider may apply to be registered

(1)    A provider may apply to be registered to provide a course or courses at a location or locations to overseas students.

(2)    The application must be made to the ESOS agency for the provider.

Note:    See section 11A for further rules about applications.

10    ESOS agency for provider may register provider

(1)    If a provider makes an application under section 9, the ESOS agency for the provider may register the provider to provide a course or courses at a location or locations if the provider meets the registration requirements.

(2)    The ESOS agency for the provider must use a risk management approach when considering whether to register the provider.

23    A “provider” is defined by s 6E of the ESOS Act as including a “registered VET provider”, which through further levels of definition, includes a training organisation registered under the NVR Act.

24    Sections 10D and 10E of the ESOS Act provide separately for the renewal of registration of a registered provider –

10D    Registered provider may apply to renew registration

(1)    A registered provider may apply to renew the provider’s registration to provide a course or courses at a location or locations to overseas students.

(2)    The application must be:

(a)    made to the ESOS agency for the register provider; and

(b)    made within the period determined under subsection (3).

Note:    See section 11A for further rules about applications.

…

10E    ESOS agency for registered provider may renew registration

(1)    If a registered provider makes an application under section 10D, the ESOS agency for the provider may renew the provider’s registration to provide a course or courses at a location or locations if the provider meets the registration requirements.

(2)    The ESOS agency for the registered provider must use a risk management approach when considering whether to renew the registration of the provider.

25    Sections 9 and 10D provide for an application for registration or renewal of registration to be made to an “ESOS agency”. An “ESOS agency” is defined by s 6C of the Act as including the National VET Regulator in respect of a registered VET provider which at the time of the amendments was also known as ASQA pursuant to the regulations to which I referred at [11] above. Correspondingly, s 157(1)(q) of the NVR Act conferred on ASQA the functions under (inter alia) the ESOS Act.

26    The phrase “meets the registration requirements” appearing in both s 10(1) and s 10E(1) of the ESOS Act is defined by s 5 of the Act as having the meaning given by s 11, which provides (inter alia) –

11    When a provider or registered provider meets the registration requirements

A provider or registered provider meets the registration requirements if:

(a)    the provider is:

(i)    a resident; or

(ii)    a Table C provider (within the meaning of the Higher Education Support Act 2003); and

(b)    the ESOS agency for the provider is satisfied that the provider is complying, or will comply, with:

(i)    this Act; and

(ii)    the national code; and

(iii)    if the ELICOS Standards or Foundation Program Standards apply in relation to the provider—those Standards; and

(c)    if the provider is not an exempt provider—the ESOS agency for the provider is satisfied that the provider is fit and proper to be registered; and

(d)    the ESOS agency for the provider is satisfied that the provider has the principal purpose of providing education; and

(e)    the ESOS agency for the provider has no reason to believe that:

(i)    the provider does not have the clearly demonstrated capacity to provide education of a satisfactory standard; or

(ii)    the provider has not been providing, or will not provide, education of a satisfactory standard; and

(f)    if the provider is an approved school provider—the designated State authority for the provider has given the ESOS agency for the provider a DSA assessment certificate; and

(g)    if the provider is not a registered provider—the provider has paid:

(i)    the first entry to market charge (if the provider is liable to pay that charge); and

(ii)    its first TPS levy; and

(h)    if the provider is a registered provider or has previously been registered—the provider is not liable to pay an amount of:

(i)    annual registration charge; or

(ii)    the second entry to market charge; or

(iii)    the third entry to market charge; or

(iv)    TPS levy; or

(v)    late payment penalty for any such charge or levy; and

(i)    any other requirements prescribed by the regulations are satisfied.

…

27    Relevant to this appeal is 11(b) the ESOS Act, set out above. Unlike earlier corresponding provisions, s 11(b) is cast as requiring a positive state of satisfaction by the decision-maker that the provider “is complying, or will comply” with the Act and the national code, whereas s 9AB(1)(f)(i) before the 2016 amendments was cast in the negative, and required that the decision-maker have “no reason to believe that the provider … is not complying, or will not comply, with this Act or the national code.” It is to be noted that the negative language of “no reason to believe” has been employed by the 2016 amendments in s 11(e) of the Act in its current form. Both forms of the provision have in common the use of the present continuous tense, (“is not complying” and “is complying”), and the future tense (“will not comply” and “will comply”). In one provision of the Act not in issue in this proceeding, the present perfect tense “has complied” is used: see the definition of “monitoring purpose” in s 5.

28    As to the instruments referred to in s 11(b) of the ESOS Act: (1) the national code is the national code made by the Minister under s 33 of the ESOS Act; (2) the ELICOS Standards are the standards made by the Minister under s 176B of the ESOS Act; and (3) the Foundation Program Standards are the standards made by the Minister under s 176C of the ESOS Act.

29    Also relevant to this appeal is s 10B of the ESOS Act, which provides for the ESOS Agency at any time to impose, or vary, or remove conditions on a provider’s or registered provider’s registration –

10B    Conditions of registration

(1)    The ESOS agency for a provider or registered provider may at any time:

(a)    impose a condition on the provider’s registration; or

(b)    vary or remove a condition of the provider’s registration.

(2)     The ESOS agency for the provider or registered provider must use a risk management approach in deciding whether to impose, vary or remove a condition.

…

30    Allied to s 10B of the ESOS Act are s 110A and s 110B, which provide for the ESOS agency (which in this case was ASQA) to accept and enforce a written undertaking given by a provider relating to compliance with the Act, the national code, and other standards referred to in the provisions.

Compliance with the ESOS Act

31    There are many provisions of the ESOS Act with which a registered provider must comply. Some provisions require a state of continuing compliance. Others are directed to proscribing an act or conduct which would constitute non-compliance. Provisions that are capable of requiring continuing compliance include –

(a)    section 21, concerning record keeping and procedures, some elements of which are directed to continuous compliance;

(b)    section 21A, concerning the maintenance and publication of a list of all the provider’s agents;

(c)    a failure to pay levies and registration charges under s 23 and s 24 of the Act by the due date and which failure is not remedied;

(d)    an ongoing failure to comply with disclosure obligations under s 26; and

(e)    the maintenance of bank accounts as required by s 28 and s 29 of the Act.

The National Code

32    The National Code of Practice for Providers of Education and Training to Overseas Students 2018 (National Code 2018) was made by the Minister by legislative instrument under s 33 of the ESOS Act on 4 September 2017, and commenced on 1 January 2018. The National Code 2018 repealed and replaced the National Code of Practice for Providers of Education and Training to Overseas Students 2017 (National Code 2017) that had commenced on 10 April 2017, which in turn took the place of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 (National Code 2007) which was repealed on 1 April 2017 under the sunsetting provision in s 50 of the Legislation Act 2003 (Cth). The National Code 2017 is in substantially the same terms as the National Code 2007. At the time of the enactment and commencement of the 2016 amendments to the ESOS Act, the National Code 2007 was in force. By reference to the transitional provisions in cl 5 of the National Code 2018, the Tribunal determined that the applicable code against which the application for renewal was to be assessed was the National Code 2017, but that historical matters relating to compliance with the National Code 2007 remained relevant to the risk management approach required by s 10E(2) of the Act.

33    In relation to the National Code 2017, there were several provisions that were capable of requiring continuing compliance, which included –

(a)    the standards of marketing required under Standard 1, to the extent that marketing is an ongoing activity;

(b)    the requirement in Standard 2.2 to have documented procedures in place for the assessment of whether a student’s qualifications, experience, and English language proficiency are appropriate for the course for which enrolment is sought;

(c)    the requirement in Standard 4.2 that the registered provider must ensure that its education agents have access to up-to-date and accurate marketing information;

(d)    the requirement in Standard 6.3 to provide students with opportunities to access welfare-related support services;

(e)    the requirements in item 6.1(c) relating to the registration on “CRICOS” (Commonwealth Register of Institutions and Courses for Overseas Students), and the Standards that are numbered 6.4, 7.2, 9.1, 10.2, 10.4, 11.3, 11.4, 13.1, and 14.1, that require certain documented policies and procedures to be in place;

(f)    the ongoing requirements in relation to student support officers in Standard 6.5;

(g)    the requirement under Standard 6.6 to have sufficient student support personnel;

(h)    the requirement under Standard 7.6 to maintain certain records;

(i)    the requirement under Standard 8.1 to have an appropriate internal complaints handling and appeals process in place; and

(j)    the requirements under Standard 14 to have suitably qualified staff and education resources.

The Tribunal’s decision

34    The Tribunal’s decision and statement of reasons have been published: King Eeducational Service Pty Ltd trading as Kinggdom Institute of Management and Australian Skills Quality Authority [2020] AATA 5105.

35    The statement of reasons commences by setting out some of the relevant provisions of the regulatory regime, noting the 2016 amendments to the ESOS Act to which I referred at [16] above. The Tribunal dealt with a number of preliminary issues, including whether the issues were to be determined by reference to the ESOS Act as it stood prior to, or following the 2016 amendments. As I have already mentioned, the Tribunal concluded that the application for registration should be dealt with under the ESOS Act as amended. The Tribunal also discussed applying a “risk management approach” in considering whether an applicant meets the registration requirements, and the discretion to impose conditions on a provider’s registration in that context: see s 10B and s 10E of the ESOS Act. The Tribunal held at [95] of its reasons that the risk management approach required that account be taken of any conditions that, if met, would enable the registered provider to comply with the registration requirements.

36    The Tribunal made findings in relation to a number of instances of non-compliance by the applicant in 2016 and 2017 with standards applicable under the NVR Act, and with standards applicable under the ESOS Act. In relation to the renewal of registration under the ESOS Act it did so because it considered that the risk management approach required by s 10E of the Act made past non-compliance relevant to the provider’s ability to comply with its obligations. The Tribunal considered the evidence and concluded that, while the applicant had undertaken ongoing work on the assessment tools required, there had been past non-compliance in 2016 and 2017 with the DET and DIBP approved course progress policy and procedures referred to in Standard 11.2 of the National Code 2017, and that the applicant was therefore obliged, but failed, to comply with Standard 11.1.

37    The Tribunal then turned to the evidence of the audits of the applicant in 2020 that were the subject of the additional written evidence that the Tribunal admitted. In relation to alleged breaches of standards (referred to as VET Standards) that were applicable under the NVR Act, the Tribunal stated that the applicant had not disputed the respondent’s findings of non-compliance with the VET Standards, but had instead chosen to replace its entire assessment system to meet the shortcomings that had been identified, which the Tribunal considered to be serious shortcomings. The Tribunal accepted that the shortcomings in the applicant’s systems of assessment and in its oversight of those systems would be addressed if the applicant implemented a set of assessment tools that had been prepared for it by a consultant whom it had engaged to respond to the ASQA audit reports.

38    In relation to the alleged breaches of the ESOS Act, the Tribunal referred to evidence that was relied on by ASQA to support a claim that the applicant had engaged in deceptive practices in contravention of s 15 of the ESOS Act resulting in the recruitment and enrolment of students in courses that the applicant was not entitled to deliver. In response, the applicant had not disputed the analysis presented by ASQA’s evidence, but claimed the conduct did not involve any breach of the relevant statutory norm. The Tribunal rejected the applicant’s claim, concluding that the applicant had offered courses to students at a time when it knew that those courses were superseded, and that given the start and finish dates, the applicant would have had to transfer the students to replacement courses. The Tribunal held that this conduct involved a failure to act with openness and honesty.

39    The Tribunal also found that there were discrepancies in the rolls of students maintained by the applicant that had been raised by the material and had not been answered by any evidence. In the Tribunal’s view, that state of affairs raised questions as to the accuracy of the applicant’s recordkeeping, or more seriously, questions about its complicity in students not meeting their visa requirements.

40    After evaluating the evidence, the Tribunal then turned to the question of the outcome of the review. The Tribunal referred to the fact that the applicant had required several months for its consultants to prepare new documentation and procedures complying with the VET Standards and the national code, but accepted that the new documentation and procedures accorded with the relevant requirements, and stated that ASQA was of the same view. However, the Tribunal expressed concern about the nature and extent of the work that had been undertaken to achieve compliance.

41    The Tribunal then identified the different legislative requirements which the applicant had to meet for renewal of its registration under the NVR Act and the ESOS Act. As I noted at [13] above, in the case of the NVR Act, those requirements were that consideration be given to whether an applicant “complies with” the VET Quality Framework and the applicable conditions of registration set out in the Act. The Tribunal concluded at [196] that it was satisfied the applicant “complies with the requirements of s 17(1)” which I take to be a reference to the matters in s 17(2) of the NVR Act to which consideration must be given. However, the Tribunal stated that it had grave concerns as to whether the applicant would implement the new assessment tools that were recommended by its consultant, and if it did, whether it would continue to have in place systems to monitor compliance. The Tribunal stated that the applicant’s contraventions of the VET Standards were quite fundamental to the scheme of accreditation that had been established by the NVR Act, and that the contraventions identified in 2020 were not simply errors or oversights, but were systemic flaws.

42    The Tribunal addressed a submission put on behalf of the applicant in its written submissions dated 23 October 2020 that its registration should be renewed subject to conditions. The applicant proposed to the Tribunal a condition that its consultant, Ms Hodge, be required to report to ASQA in 12 months’ time regarding its resourcing and implementation of the new systems, among other things, and to recommend remedial action which the applicant would undertake. The applicant proposed that it would be required to pay for the report, and that its consultant would agree to provide an impartial analysis to assist ASQA to exercise its regulatory functions. It was submitted that, as the applicant would bear the cost of “policing” its implementation in the first instance under the supervision of its consultant, that this would relieve some of the regulatory burden from ASQA. The submission that proposed renewal subject to a condition was referred to in [14] and [23] of the applicant’s submissions in the context of both the NVR Act and the ESOS Act, before being developed at [62]-[65]. As the question whether the Tribunal addressed this submission is central to the third question of law raised on appeal, I will set out [62]-[65] of the submission in full –

62.    In summary, [the applicant] contends that the material filed on its behalf provides a complete answer to all the concerns raised in ASQA’s audit report. There is no longer any basis to support the decisions under review, so the non-renewal decision should be set aside, and [the applicant’s] registration renewed under each Act for five years, commencing the date of the decision of the Tribunal.

63.    However, the submission just made depends, as Ms Clayton [who prepared a report that was before the Tribunal] points out, on [the applicant] implementing the systems that it has deployed significant resources on developing. All RTOs are ordinarily required to undertake self-regulation and continuous improvement. In this case, if the Tribunal has lingering concerns about future implementation, it could impose a condition on registration that Ms Hodge be required to report to ASQA in 12 months’ time, from the Tribunal’s decision, on four matters:

(a)    [the applicant’s] compliance with its reporting obligations under the ESOS Act;

(b)    [the applicant’s] resourcing and implementation of the new assessment system (including issues identified at pages 14-17 of the September Clayton Report);

(c)    [the applicant’s] compliance with NVR Standard 3.1; and

(d)    [the applicant’s] remedial training and assessment of past students.

64.    [The applicant] would be required to pay for the report, and Ms Hodge would agree to provide an impartial analysis to assist ASQA exercise its regulatory functions. Any remedial action assessed by [the applicant] is necessary, as identified by Ms Hodge in her evidence and as may be identified by [the applicant] and Ms Hodge on an ongoing basis, would be undertaken by [the applicant] and form part of the report.

65.    A renewal of registration on this condition would strike the right balance. [The applicant] has gone to significant effort to develop a system that ASQA recognises is compliant if properly implemented. [The applicant] should have an opportunity to implement that scheme. If [the applicant] is bearing the cost of policing its implementation in the first instance, under the supervision of a highly reputable and qualified consultant, that will relieve some of the regulatory burden from ASQA while maintaining confidence in the enforcement of the VET Quality Framework.

43    Earlier, by its written submissions dated 2 October 2020, ASQA submitted to the Tribunal that the Tribunal’s powers were not confined to affirming or setting aside the decisions under review, citing Australian Skills Quality Authority v Brighton Pacific Pty Ltd [2020] FCA 617 (see at [40]-[48] per Collier J and the cases cited therein). ASQA submitted that the Tribunal had the freedom and flexibility to tailor a decision, and raised the possibility that the Tribunal might cancel the applicant’s registration under the ESOS Act, but renew its registration under the NVR Act.

44    The Tribunal referred in several places in its reasons to the power under the ESOS Act to impose conditions upon registration. At [41], the Tribunal referred to the fact that conditions may be imposed, and cited Part 2, Division 3 of the ESOS Act. At [44], the Tribunal referred again to the provisions of the ESOS Act providing for the imposition of conditions, stating that it would return to those provisions. At [95], the Tribunal returned to the conditions, stating –

Section 10E and the registration requirements in s 11 do not stand alone. They [are] found in legislation which empowers the ESOS agency to impose conditions on a provider’s registration or to vary or remove a condition under s 10B. Again, the ESOS agency must use a risk management approach in deciding whether to do so but the fact that it may do so sits with the same approach it must take in relation to considering whether to renew a registered provider’s registration. A risk management approach will need to take account of conditions, if any, that, if met would enable the registered provider to comply with the registration requirements.

45    At [101], the Tribunal referred again to the power under s 10B of the ESOS Act to impose conditions on a provider’s registration, and at [102] referred to the power under s 110A of the ESOS Act to accept undertakings. The Tribunal then said at [103] –

What the possibility of the ESOS agency’s accepting an enforceable undertaking and being able to impose conditions on a provider as well as the fact that some key registration requirements are not absolute in their terms show is that compliance with the registration requirements may be the subject of ongoing rectification by the provider and monitoring by the ESOS agency. That is consistent with a scheme of registration that permits a provider to undertake rectification work after receiving an adverse decision from the ESOS agency and lodging an application for review of that decision in the Tribunal.

46    The Tribunal rejected the applicant’s submission that the conditions proposed by it should be imposed, essentially on the ground that ASQA was responsible for investigating questions of compliance, and that this function should not be delegated by the Tribunal to the applicant’s consultant. Nonetheless, the Tribunal determined to renew the applicant’s registration under the NVR Act for a shortened period of three years, subject to two conditions –

(a)    that it engage a consultant approved by ASQA for an initial 12 month period to oversee its compliance with the NVR Act, including the VET Quality Framework; and

(b)    that it implement appropriate systems to ensure compliance and enforcing its own compliance with those systems.

47    The Tribunal stated that it expected ASQA to conduct an audit at the end of that 12 month period. The relevant passages in the Tribunal’s statement of reasons are as follows –

195.    Mr Dhawan [a director of the applicant] expressed concern about the time that [the applicant] was given to respond to the January Evidence Review Report. He had requested six months and was disappointed when required to lodge its evidence by 29 May 2020 in response to ASQA’s application to set aside the stay order. As matters have turned out, [the applicant] lodged its first Audit Rectification Response at the end of June as an Exhibit to an affidavit of Mr Dhawan. Its second and last Audit Rectification Response was lodged in August 2020 in response to Ms Clayton’s July Evidence Review Report. I understand that [the applicant] needed those months for the RTO Doctor, and so Ms Hodge, to prepare new documentation and procedures complying with the VET Standards and the National Code. I also accept that the new documentation and procedures accord with those requirements and that ASQA is of the same view. What is of concern to me is the nature and the extent of the work that has been undertaken by the RTO Doctor to achieve compliance with the assessment tools. That work was done in an environment in which [the applicant] had, as an NVR Registered Training Organisation, an ongoing obligation under s 22 of the NVR Act to comply with the VET Quality Framework that includes the VET Standards.

196.    Having said that, I must have regard to the legislative requirements that [the applicant] must meet for re-registration. I have already decided that they differ between the NVR Act and the ESOS Act. In the case of s 17(1) of the NVR Act, the issue is whether [the applicant] “complies with” the VET Quality Framework and the applicable conditions of registration in Subdivision B of Division 1 of Part 2 of the NVR Act. As matters stand and having regard both to the breaches relied upon by ASQA on the basis of the Evidence Review Reports prepared by Ms Clayton and the rectification relied upon by [the applicant] in the form of Ms Hodge’s rectification work, I am satisfied that [the applicant] complies with the requirements of s 17(1).

197.    Even if I have regard only to the fact that such extensive rectification work was required in 2020, I have grave concerns whether [the applicant] will implement the new assessment tools recommended by Ms Hodge and, if it does, whether it will continue to have in place systems to monitor compliance. On the evidence that I have, I am not satisfied that [the applicant] had, at the time of the audits conducted from January 2020, monitoring systems of that sort or even spot check monitoring. It is not enough to tell teaching or administrative staff to undertake tasks or to give them the assessment tools and expect them to complete them properly. It should be enough but those who are the executive officers of any RTO need to bear in mind that they may be personally liable to a civil penalty if the RTO should prove to be in breach of civil penalty offences under Division 1 of Part 6 of the NVR Act.

(Footnote omitted.)

198.    Mr Lloyd submitted that the Tribunal has power to make any decisions that ASQA has power to make. He referred to the judgment of Collier J in Australian Skills Quality Authority v Brighton Pacific Pty Ltd, …

(Extracts from authorities and footnotes omitted.)

199.    The NVR Act does not restrict the Tribunal’s power to use ASQA’s power. The only restriction comes from s 43(1) of the AAT Act when it provides that “For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision …”.

200.    [Counsel for the applicant’s] submission is also based on the Tribunal’s having the same powers as those conferred on ASQA. In so far as [the applicant’s] registration under the NVR Act is concerned, he submitted that I should set aside ASQA’s decision and substitute a decision that [the applicant] be registered but on condition that Ms Hodge be required to report to ASQA in 12 months’ time regarding [the applicant’s] resourcing and implementation of the new assessment system (including the issues identified at pages 14 to 17 of Ms Clayton’s September Evidence Review Report), [the applicant’s] compliance with VET Standard 3.1 and its remedial training and assessment of past students. [The applicant] would be required to pay for the report and Ms Hodge would be required to provide an impartial analysis to assist ASQA in its regulatory functions. [The applicant] would undertake any remedial action recommended by Ms Hodge. [Counsel for the applicant] submitted that renewal of [the applicant’s] registration on this condition would strike the right balance. [The applicant] has gone to significant effort to develop a system that ASQA recognises is compliant if properly implemented. It should have the opportunity to implement that scheme.

201.    I accept that Ms Hodge would act professionally if she were asked to take this role but it is not a role that I think that she should be asked to undertake or that I can ask or require her to undertake. The investigative powers are given by the NVR Act to ASQA. ASQA has power to delegate all or any of its functions and powers to, among others, a consultant engaged under s 184 but that is not a power that the Tribunal can exercise. I cannot exercise it. Although the power of delegation is conferred on the decision-maker, ASQA, it is not a power that can be characterised as a power that the Tribunal would use “for the purpose of reviewing a decision”. It is a power that gives ASQA choice and flexibility as to how it carries out its functions and exercises its powers but it is not a power that has any relevance in deciding, and so reviewing, whether an RTO has met its obligations under the NVR Act and the decision that should be made regarding that RTO’s application for registration.

202.    [The applicant’s] contraventions of the VET Standards are quite fundamental to the scheme of accreditation that has been established by the NVR Act. That is illustrated by the contraventions identified in 2020 even if I do not have regard to the previous contraventions. They are not simply errors or oversights but systemic flaws. They are systemic flaws that were apparent before 2020. I have touched on them in looking at past historical events but I do not rely on the past to come to that view about the present situation. Systemic failures are not consistent with the objects set out in s 2A of the NVR Act. In particular, it is not consistent with the object to protect and enhance quality in vocational education and training or with the object to protect students undertaking, or proposing to undertake, Australian vocational education and training by ensuring that quality education is provided. These purposes are underlined by the purpose set out in Part 1 of the VET Standards to ensure that training products delivered by RTOs meet the requirements of training packages or VET accredited courses and that they have integrity for employment and further study. Unless there can be some certainty that learners are being properly assessed in their coursework, the integrity of the VET system as a whole is in jeopardy.

203.    Bearing these matters in mind, I have decided that I should set aside ASQA’s decision dated 11 November 2015. In its place I will substitute a decision that, subject to a condition, [the applicant] be registered as an RTO from the day after the expiration of its previous registration for a period expiring on 24 December 2023. The condition is that [the applicant] engage a consultant approved by ASQA for an initial 12 month period and on either a full or part time basis to oversee its compliance with the NVR Act, including the VET Quality Framework. Compliance means that it will have in place appropriate systems to meet its obligations and that it will implement, monitor and enforce those systems. I would expect ASQA to conduct an audit at the end of that 12 month period but that it do so is not part of my decision.

(Footnote omitted.)

48    The Tribunal then addressed the question of the renewal of the applicant’s registration under the ESOS Act. Its conclusions in relation to the application of s 11 of the ESOS Act following the 2016 amendments are stated within [204] of its statement of reasons, and because the substance of, and alternatively the adequacy of the Tribunal’s reasons are in issue, I will set out the whole of that paragraph –

204.    That brings me to [the applicant’s] registration under the amended ESOS Act. Although s 11(b) requires me to have regard to compliance, the test is a little different from that under s 16 of the NVR Act. The test is whether [the applicant] is complying, or will comply, with the amended ESOS Act. Under s 10E of the amended ESOS Act, I must use a risk management approach. I have had regard to the findings that I have made in relation to [the applicant’s] breaches of the amended ESOS Act. At the heart of most of them lies a lack of proper assessment tools and lack of monitoring. I am satisfied that [the applicant] has, for the most part, addressed the assessment tools. What remains to be tested is whether it is able to implement those tools and do so efficiently and effectively and to sustain the effort required to do so over the period of its registration. I have made findings regarding breaches of National Code Standards 11.1 and 11.2 some four years ago. Despite being on notice that ASQA at least had found it in contravention of the National Code at that time and despite having called evidence at that earlier time regarding work being undertaken to rectify its contraventions, [the applicant] has continued to be in contravention. It might be said that the contraventions are different but that is of no matter. The earlier contraventions and its proper response to rectify them should have made it very mindful to make sure that it attended to its systems and tools to ensure that it did not find itself in the same position again. Instead, it finds itself in a similar position in 2020 in having to call in the RTO Doctor to place it in a position of compliance. Given its past history and given the scope of the work that had to be undertaken by the RTO Doctor, I am not satisfied that [the applicant] will comply with the amended ESOS Act and the National Code. Therefore, I have decided to affirm ASQA’s decision dated 27 October 2015, and notified to [the applicant] on 11 November 2015, to reject [the applicant’s] applications for renewal of its registration under the amended ESOS Act.

49    The Tribunal then addressed in the alternative the criteria for renewal of registration under s 9AB of the ESOS Act that was in force prior to the 2016 amendments (see [19] above) in the event that, contrary to the Tribunal’s conclusion, that provision was applicable. Although that question is not in issue on this appeal, the Tribunal’s reasons at [205] in relation to the former s 9AB are capable of informing [204] of the Tribunal’s reasons –

205.    If it should prove to be the case that the ESOS Act 2000 applies and not the amended ESOS Act, I am not satisfied that I have, under s 9AB(1)(f)(i), no reason to believe that [the applicant] will not comply with either that legislation or with the National Code. My reasons for reaching that conclusion are the same as those in the previous paragraph. Again, that would lead me to affirm ASQA’s decision not to renew [the applicant’s] registration under the ESOS Act 2000.

The questions of law and grounds of appeal

50    By its amended notice of appeal, the applicant raises three questions of law, with corresponding grounds of appeal. In summary, the questions of law and the corresponding grounds of appeal give rise to three issues –

(1)    Did the Tribunal address the correct question in assessing whether the applicant “meets the registration requirements” within the meaning of that expression in s 11 of the ESOS Act?

(2)    Alternatively, did the Tribunal give adequate reasons for its decision so as to enable the court to understand whether it asked the wrong question, or failed to ask the correct question?

(3)    Further, or in the further alternative, did the Tribunal act unreasonably in failing to consider the imposition of any conditions pursuant to s 10B of the ESOS Act that would enable it to be satisfied that the applicant “meets the registration requirements”?

Question 1 – Did the Tribunal address the correct question?

The applicant’s submissions

51    Counsel for the applicant submitted that at [204] of its reasons the Tribunal erred by addressing only the second of two disjunctive limbs of s 11(b) of the ESOS Act, namely whether the applicant “will comply” with the statutory requirements referred to in the provision. Counsel submitted that the Tribunal failed to address the first limb, namely whether the applicant “is complying” with the statutory requirements. This submission was dependent upon submissions as to the proper construction of the expression “is complying, or will comply” in s 11(b). Counsel submitted that there were only two plausible constructions of s 11(b) of the Act, and that both constructions required that the Tribunal give consideration to whether the applicant “is complying” with the statutory requirements.

52    The first construction advanced by counsel for the applicant was that the composite expression, “is complying, or will comply”, is ambulatory so that the applicable limb will depend upon the registration status of the provider. According to the submission, in the case of a registered applicant seeking renewal of registration, the applicable limb is “is complying”. In the case of an applicant which is not yet a registered provider, the applicable limb is “will comply”. Counsel submitted that this construction recognised the terms of the chapeau to s 11 (see [26] above): “A provider or registered provider meets the registration requirements if …” (emphasis added).

53    The second and alternative construction advanced by counsel for the applicant was a literal interpretation such that the decision-maker needed to be satisfied of only one of the two alternatives: “is complying” or “will comply”, and in this case the Tribunal had failed to consider the first alternative and had focussed only on the second. Counsel accepted that this construction would lead to some degree of arbitrariness, and was less preferable than the primary construction that was advanced.

54    Counsel for the applicant also submitted that, incidentally, the Tribunal had erred in stating that a “risk management approach” was to be applied to the evaluative criteria in s 11(b) of the ESOS Act. Counsel continued that, correctly understood, the mandate in s 10E(2) of the Act to use a “risk management approach” when considering whether to renew the registration of the provider applied to the discretion to renew the registration, for which s 10E(1) provided upon the decision-maker being satisfied that the provider “meets the registration requirements”, which was a jurisdictional fact.

The respondent’s submissions

55    Counsel for the respondent submitted that neither construction of s 11(b) of the ESOS Act advanced on behalf of the applicant was correct. Counsel submitted that both constructions advanced on behalf of the applicant would require the decision-maker to find that a provider met the registration requirements if there was current compliance alone, even if the Tribunal was not satisfied that the provider would continue to comply with the statutory requirements based upon a history of non-compliance. It was submitted that a construction with that consequence was inconsistent with the objects of the ESOS Act, the history of the relevant provisions, and the statutory context in which they appear. Counsel pointed to the terms of s 9AB(1)(f)(i) of the Act prior to the 2016 amendments (see [19] above) and submitted that the provision in that form had a conjunctive effect, having regard to the negative form in which it was expressed. Counsel submitted that there was no suggestion in the explanatory materials to the amending Act that the change from the negative to the positive formulation was intended to effect a change in meaning in that respect. Counsel for the respondent also submitted that a construction which would exclude future compliance from consideration was inconsistent with the risk management approach to decision-making that was mandated by s 10E(2), which was not limited to the exercise of a residual discretion under s 10E(1) of the Act.

56    Counsel for the respondent submitted that for the above reasons it was appropriate to give a conjunctive construction to the word “or” in s 11(b), and submitted that this was permissible in two circumstances: (1) where the disjunctive form had been used as a result of faultiness of expression; and (2) where the underlying object or purpose and the context of the provision suggested such a construction.

57    Counsel for the respondent also relied on s 15AC of the Acts Interpretation Act 1901 (Cth), and submitted that there had been a change in language adopted by s 11 that had been introduced for clarity, and that the idea underlying the new expression should not be taken to be different.

58    Upon the construction of s 11(b) advanced on behalf of the respondent, counsel submitted that there was no error in the Tribunal basing its decision solely on its failure to be satisfied that the applicant “will comply” with the statutory requirements.

59    Alternatively, counsel for the respondent submitted that the Tribunal had made a finding that the applicant “has continued to be in contravention”, and that in those circumstances it was “absurd to suggest” that the Tribunal failed to have regard to whether the applicant “is complying” with the statutory requirements. In this regard, counsel submitted that the court should not too readily draw an inference that where the reasons are comprehensive, and where an issue has been identified, that it has not been addressed.

Question 2 – Did the Tribunal give adequate reasons?

The applicant’s submissions

60    Alternatively, counsel for the applicant submitted that the Tribunal’s reasons were at best unclear as to whether it considered that it was satisfied that the applicant “is complying” with the statutory requirements. Counsel submitted that a failure by the Tribunal to provide reasons that were adequate was an error of law, and that the court should order the matter to be reheard by the Tribunal, and not give the Tribunal an opportunity to patch up what was defective by compelling delivery of further or better reasons, citing Body Corporate Strata Plan No 4166 v Stirling Properties Ltd (No 2) [1984] VR 903 at 912 (Ormiston J).

The respondent’s submissions

61    The primary submission of counsel for the respondent was that upon the construction of s 11(b) of the ESOS Act that the respondent advanced, it was unnecessary for the Tribunal to consider whether the applicant “is complying” with the statutory requirements because its failure to be satisfied that the applicant “will comply” was a sufficient basis for its decision.

62    Alternatively, counsel for the respondent invoked the guidance essayed in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ) and 291 (Kirby J), and submitted that the Tribunal’s reasons disclosed that it had regard to the applicant’s current compliance in addition to its prospects of future compliance.

Question 3 – Did the Tribunal act unreasonably or otherwise act in excess of jurisdiction by failing to address the question of conditions?

The applicant’s submissions

63    Counsel for the applicant submitted that, independently, the Tribunal failed to address submissions put to the Tribunal on behalf of the applicant that conditions might be imposed on the applicant’s registration pursuant to s 10B of the ESOS Act that could address concerns about the implementation of its systems and assessment tools. Counsel submitted that the Tribunal had determined to renew the applicant’s registration under the NVR Act subject to conditions, but inexplicably no consideration of possible conditions had occurred in relation to the renewal of registration under the ESOS Act. Counsel submitted that the failure by the Tribunal to consider the possibility of imposing conditions was unreasonable. Alternatively, it was submitted that the Tribunal’s failure to consider the imposition of conditions by engaging in an active intellectual process amounted to a denial of procedural fairness, or alternatively, a constructive failure to exercise jurisdiction.

The respondent’s submissions

64    Counsel for the respondent submitted that the Tribunal was not obliged to consider whether to exercise the discretionary power under s 10B of the ESOS Act to impose a condition on the applicant’s registration. Counsel also submitted that the Tribunal had referred to the power under s 10B to impose conditions, and had also referred to the applicant’s submission that the Tribunal should renew its registration subject to conditions, which submission had encompassed both the NVR Act and the ESOS Act. While the Tribunal had imposed conditions in relation to the renewal of registration under the NVR Act requiring the applicant to engage a third party to oversee compliance, and to implement systems to ensure compliance, that was in a context where the mandatory consideration under the NVR Act was whether an applicant “complies with” the relevant statutory requirements, rather than satisfaction that an applicant “will comply”. Counsel submitted that in relation to the ESOS Act, the Tribunal had consciously taken a different approach in circumstances where the legislation directed attention to both current compliance and future compliance. Counsel submitted that in doing so, the Tribunal appeared to have accepted the submission of ASQA that it was open to renew the applicant’s registration under the NVR Act, but to affirm the decision to refuse the application for renewal under the ESOS Act. It was submitted that for these reasons the court should not accept the applicant’s claim that the Tribunal had erred by failing to consider imposing a condition under s 10B of the ESOS Act.

Analysis

Analysis – Question 1 – Did the Tribunal address the correct question?

The principles of statutory construction

65    The principles of statutory construction are well known. The process of construction begins and ends with the text of the statute. The meaning of text may require consideration of context, including the history of the legislation, the general purpose and policy of a provision, and any mischief that the legislation is seeking to remedy: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 at [47] (Hayne, Heydon, Crennan and Kiefel JJ). Regard should be had to context and purpose at the first stage, and not merely at some later stage for the purposes of resolving an ambiguity. If the ordinary meaning of a word in a provision is not consistent with statutory purpose, and some other meaning is suggested by context, the ordinary meaning must be rejected: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 at [14] (Kiefel CJ, Nettle and Gordon JJ). The purpose of legislation resides in its text, and may appear from an express statement of objects, by inference from its terms, and by appropriate reference to extrinsic materials: Lacey v Attorney-General (Qld) [2011] HCA 10; 242 CLR 573 at [44] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). However, recourse to extrinsic materials should not be relied on to displace the clear meaning of the text: Alcan at [47]. The boundaries to a court’s capacity to depart from the language used in the text of a statute are underpinned by the different constitutional roles of the courts and the legislature in a representative democracy. “[T]hose who are subject to the law, those who invoke it and those who apply it are entitled to expect that it means what it says”: NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228; 123 FCR 298 at [430] (French J). For this reason, legislation is interpreted by reference to rules of construction accepted by all arms of government: Zheng v Cai [2009] HCA 52; 239 CLR 446 at [28] (French CJ, Gummow, Crennan, Kiefel and Bell JJ), cited in the joint judgment in Lacey v Attorney-General (Qld) at [43]. The requirement to comply with those rules of construction means that any task of construction, including by the implication of words where necessary, must proceed by reference to the words which the legislature has enacted, and the construction arrived at must be consistent with the language used: Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; 253 CLR 531 at [39] (French CJ, Crennan and Bell JJ).

Jurisdictional facts

66    The defined expression “meets the registration requirements” is employed in three operative provisions of the ESOS Act: (1) the power to register a provider in s 10(1); (2) the power to renew a registered provider’s registration in s 10E(1); and (3) the power in s 10J(1) to add courses or locations to a registered provider’s registration. For the purposes of those provisions, whether the provider “meets the registration requirements” as defined by s 11 does not involve the exercise of a discretion. Rather, it is a jurisdictional fact that must exist before the relevant power is engaged. Some components of s 11 of the ESOS Act relate to the existence of facts that can be objectively ascertained, such as whether the provider is a resident, and whether the provider is liable for outstanding fees or levies. Others, such as sub-ss 11(b), (c), and (d) involve the decision-maker forming a state of satisfaction based upon evaluative judgments: see the discussion in Ali v Minister for Home Affairs [2020] FCAFC 109; 278 FCR 627 at [39]-[44] (Collier, Reeves and Derrington JJ).

67    The term “provider” is defined by s 6E of the ESOS Act as a person having the qualifications or attributes set out in s 6E, “that provides, or seeks to provide, courses to overseas students”. While the power to register in s 10(1) of the ESOS Act applies to a “provider” seeking to be registered to provide courses at a location that are the subject of the application, it does not follow as a matter of logic that an applicant for registration of a particular course at a particular location could not otherwise be a registered provider in respect of other courses at other locations, having regard to the definition of “provider”. However, s 10H make specific provision for a registered provider to apply to add one or more courses at one or more locations to the provider’s registration.

Is there a residual discretion in s 10E(1)?

68    Section 10E(1) of the ESOS Act provides that if the registered provider “meets the registration requirements”, then the decision-maker “may” renew the registration. A question arises as to whether there is any discretion involved in deciding to renew the registration of a provider: cf, Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 274 (Brennan CJ, Toohey, McHugh and Gummow JJ); Victorian Building Authority v Andriotis [2019] HCA 22; 372 ALR 1. The relevance of this issue is the statutory context in which s 11(b) is to be construed. Counsel for the applicant submitted that there was a residual discretion in s 10E to refuse renewal of registration, notwithstanding that the provider met the registration requirements. This involves construing s 10E(1) as conferring a faculty or power, but not a duty to register: see, eg, Julius v Lord Bishop of Oxford (1880) 5 App Cas 214.

69    It might have been open to counsel for the respondent to submit that the registration requirements of s 11 were so comprehensive as to demonstrate that they were intended to be exhaustive so that the decision-maker was compelled to renew the registration if the requirements in s 11 were met: see, eg, Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2012] HCA 36; 246 CLR 379 at [115]-[119] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); and cf, Commissioner of State Revenue (Vic) v ACN 005 057 349 Pty Ltd [2017] HCA 6; 261 CLR 509 at [61] (Bell and Gordon JJ, Kiefel and Keane JJ, and Gageler J agreeing); Commissioner of the Australian Federal Police v Hart [2018] HCA 1; 262 CLR 76 at [104] (Gordon J). However, counsel for the respondent advanced no affirmative submission on this issue, and did not dispute the construction advanced on behalf of the applicant.

70    The ESOS Act was assented to on 21 December 2000 after the commencement on 18 December 1987 of s 33(2A) of the Acts Interpretation Act, which provides that where an Act assented to after the commencement of the subsection provides that a person, court or body “may” do a particular act or thing, then it may be done at the discretion of the person, court or body. The operation of s 33(2A) of the Acts Interpretation Act forms part of the relevant context to the enactment of the ESOS Act and its amendments. However, the application of s 33(2A) of the Acts Interpretation Act is subject to a contrary intention: Acts Interpretation Act, s 2(2). A contrary intention may appear in the process of construction, and most commonly will arise by reference to the context in which the word “may” appears: Victorian Building Authority v Andriotis [2019] HCA 22; 372 ALR 1 at [43] (Kiefel CJ, Bell and Keane JJ). If a contrary intention appears in relation to s 10E(1) of the ESOS Act, then the word “may” might do no more than confer an authority that must be exercised if the circumstances are such as to call for its exercise, such as the existence of the decision-maker’s satisfaction that the provider meets the registration requirements: cf, Macdougall v Paterson (1851) 11 CB 755 at 773; 138 ER 672 at 679 (Jervis CJ giving the judgment of the Court), cited in Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 at 134-135 (Windeyer J).

71    There are three indicators that the use of the word “may” in s 10E(1) of the ESOS Act is not to be construed contrary to the prima facie meaning provided for by s 33(2A) of the Acts Interpretation Act. The first indicator is s 10E(2) of the ESOS Act, which provides that the decision-maker must use a “risk management approach” when considering whether to renew the registration of the provider. The expression “risk management approach” is not defined: cf, Raffles College Pty Ltd v Tertiary Education Quality Standards Agency [2015] FCA 734; 233 FCR 162 at [34]-[36] (Perram J) which addressed “risk management approach” in s 9AH of the ESOS Act prior to the 2016 amendments. There are other powers under the ESOS Act to which a risk management approach must be applied in their consideration, namely: the power to register a provider under s 10(1); the power to impose conditions on registration under s 10B(1); the power under s 10J(1) to add one or more courses to a registered provider’s registration; and the power under s 10L(1) to extend a registered provider’s period of registration. The requirement to apply a risk management approach is an express condition on the exercise of these powers such that in the case of s 10E there is room to refuse registration notwithstanding that the jurisdictional fact, namely that the provider “meets the registration requirements” is engaged.

72    The second indicator is that in several provisions of the ESOS Act, the word “must” is employed in relation to the obligations of a decision-maker, thereby indicating a considered difference in meaning. A non-exhaustive list of such provisions is: s 7A(2); s 10(2); sub-ss 10A(1) and (3); sub-ss 10B(2) and (4); s 10C(2); s 10E(2); sub-ss 10G(1) and (3); s 10K(1); s 10L(5); and s 11B(3). Further, s 9AB(1) of the ESOS Act that was in force prior to the 2016 amendments provided that the Secretary “must” register an approved provider if the conditions set out in s 9AB(1) were satisfied: see [19] above. Those conditions included that a designated authority had made a recommendation under s 9AA in relation to the provider, and that the Secretary had no reason to believe that the provider “is not complying, or will not comply” with the Act or the national code. This difference between the former s 9AB and the current provision supports the construction of “may” in s 10E(1) in the prima facie meaning provided for by s 33(2A) of the Acts Interpretation Act, such that no contrary intention is indicated for the purposes of s 2(2) of the Act Interpretation Act. A similar observation may be made in relation to the other provisions of the ESOS Act that adopt the same structure as s 10E, namely s 10, s 10B, and s 10J.

73    The third indicator is that the power to renew registration should be read together with the power to impose conditions upon registration under s 10B, the power under s 110A to accept written undertakings given by a provider in order to attain compliance, and the discretion that arises under s 10G(2)(e) to determine the period of registration upon renewal, which must not be longer than seven years. The notice of registration provisions in s 10A(2)(f) and s 10G(2)(f) confirm that conditions may be imposed at the time of registration, and at the time of renewal. Whether conditions should be imposed, or undertakings accepted, and the period of registration involve the exercise of discretions, thereby supporting the conclusion that the decision to renew registration, and if so whether it should be subject to conditions and for what period, is discretionary.

74    It is unnecessary to pursue at large the implied limitations on the exercise of the discretion other than to observe that it must be exercised reasonably, and consistently with the subject-matter, scope, and purpose of the ESOS Act, and having regard to the requirement in s 10E(2) that a risk management approach is to be used. This requirement can be described as aspirational or exhortatory in nature, rather than a source of directly enforceable rights and obligations: see, eg, Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [12]-[14] (French CJ), [96]-[98] (Gageler J); Shord v Federal Commissioner of Taxation [2017] FCAFC 167; 235 FCR 157 at [127] (Siopis and White JJ). It may be a factor to be taken into account if the occasion arises to consider whether a decision made under the ESOS Act was legally unreasonable. The language of s 10E(2) extends the mandatory use of the risk management approach to the whole of the decision-making process, which in my view includes consideration of whether the subjective jurisdictional facts listed in s 11 are established. In addition, in those cases where consideration of whether the subjective jurisdictional facts exist may have to take account of any conditions on registration that might be imposed, a risk management approach would be mandated by s 10B.

The proper construction of s 11(b)

75    The heading and chapeau to s 11 of the ESOS Act recognise that the requirements set out in s 11 are applicable to providers and registered providers. Paragraph 11(g) expressly relates to a provider that is not a registered provider, and paragraph 11(h) expressly relates to a provider that is a registered provider, or which has previously been registered. Otherwise, the other paragraphs are directed to the situation of a “provider”, which as I have mentioned above is defined by s 6E and includes a registered provider and a person who seeks to provide courses to overseas students.

76    The primary issue that is raised by the applicant’s first question of law is whether, in relation to a provider that is a registered provider, s 11(b) of the ESOS Act, and its reference to “is complying, or will comply”, requires that the decision-maker be satisfied of either limb, the first limb only, or both limbs.

77    I have considered a number of authorities where courts have been invited to construe “and” disjunctively, and “or” conjunctively. These authorities are not directly relevant, because they concern the construction of other statutes. However, they are useful to the extent that they show how other courts have approached similar problems. In the former category, where courts have been invited to construe “and” disjunctively, is the decision of the Supreme Court of the Northern Territory in Re the Licensing Ordinance (1968) 13 FLR 143. Blackburn J, in addressing the authorities that were cited to the court, stated at 146-147 –

… Each of them in my opinion falls into one or the other of two categories. The first category is that of cases where, if “and” was given its natural meaning, the result was so extraordinary… that in order to make sense of the provision the court was obliged to say that it must read the word “and” as if it had been “or”. The cases in the second category were those in which there was a list of items, the items being joined by “and” and the list being governed or affected by words which showed that the list was a list of alternatives. …

…

In my opinion, the proposition that “and” can sometimes mean “or” is true neither in law nor in English usage, and the authorities do not show otherwise.

78    There have been a number of instances where in construing a provision containing the word “or” the prima facie grammatical sense has been adjusted so as to give effect to the obvious intention of the provision, or otherwise to avoid a contradiction or absurdity: Walker v York Corporation [1906] 1 KB 724; Federal Steam Navigation Co Ltd v Department of Trade and Industry [1974] 1 WLR 505; Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627. There are other instances where, without any necessary strain upon the language of the statute, “or” has been held on its true construction to have a conjunctive meaning: R F Brown & Co Ltd v T and J Harrison (1927) 43 TLR 633 at 637 (Bankes LJ, Atkin LJ and Lawrence J agreeing). In giving separate reasons, Atkin LJ referred to the absurdity of an alternative disjunctive construction, and stated at 639 –

… I disagree with the learned judge in his view that the word “or” can never have a conjunctive sense. I think it quite commonly and grammatically can have a conjunctive sense. It is generally disjunctive, but it may be plain from the collocation of the words that it is meant in a conjunctive sense, and certainly where the use of the word as a disjunctive leads to repugnance or absurdity it is quite right within the ordinary principles of construction adopted by the Court to give the word a conjunctive use. Here it is quite plain that the use of the word as a disjunctive leads to an absurdity … In addition to that, there is a repugnancy, because to use the word in a disjunctive sense is plainly repugnant to the second part of the section.

79    There are some general statements in the authorities concerning the ordinary meaning of the word “or”. In Morgan v Thomas (1882) 9 QBD 643, a case concerning the construction of a will, Jessel MR stated at 645-646 –

You will find it said in some cases that “or” means “and;” but “or” never does mean “and;” unless there is a context which shews it is used for “and” by mistake.

80    In Green v Premier Glynrhonwy Slate Company Ltd [1928] 1 KB 561, in addressing a suggested construction of a workers’ compensation statute that would lead to reading “or” as “and”, Scrutton LJ stated at 568 –

You do sometimes read “or as “and” in a statute. In Brown & Co v Harrison [(1927) 43 TLR 394] MacKinnon J read “or” as “and” in the Carriage of Goods by Sea Act, 1924, and his decision was confirmed by this Court. But you do not do it, unless you are obliged, because “or” does not generally mean “and” and “and” does not generally mean “or”.

81    In In re Diplock [1941] 1 Ch 253, another case concerning the construction of a will, Greene MR stated at 260 –

The word “or” is prima facie, and in the absence of some restraining context, to be read as disjunctive …

82    In Federal Steam Navigation Co Ltd v Department of Trade and Industry [1974] 1 WLR 505 the House of Lords considered the proper construction of a penal statute that made “the owner or master” of a ship from which oil was discharged guilty of an offence. The question before the House was whether both the owner and master could be convicted of the offence, and it was held by a 3-2 majority that both the master and the owner of the ship could be convicted of the offence, for to hold otherwise would result in absurdity: see at 522F (Lord Wilberforce) and 524A, 524E and 525A (Lord Salmon). Lord Simon of Glaisdale concluded at 523D that the drafter used “or” for “and” in error. Lord Wilberforce, in reaching his conclusion, stated at 520E-521A –

To say that what we have to decide is whether “or” is conjunctive or disjunctive or, putting it more bluntly, whether “or” means “and,” appears to me, with respect, to be a dangerous simplification. It is the meaning of the phrase as a whole that concerns us.

…

In logic, there is no rule which requires that “or” should carry an exclusive force. Whether it does so depends on the context. So one must ask what, in a legal context, is the meaning of an assertion that “A or B” is to be guilty of an offence? … It seems clear enough that where the law says that something is to happen to “A or B,” if what is intended is an exclusionary alternative (i.e., one, but not the other), the law must state either some qualification by which the affected person may be determined), or must name a third person by whom the choice may be made.

83    Returning to questions of logic, Lord Wilberforce stated at 522C –

If all these meanings are rejected, there remains the course of treating “or” as expressing a non-exclusionary alternative—in modern logic symbolised by “v”. In lawyer’s terms this may be described as the course of substituting “and” for “or,” or, rather the course of redrafting the phrase so as to read: “the owner and the master shall each be guilty,” or, if the phrase of convenience were permitted “the owner and/or the master.” To substitute “and” for “or” is a strong and exceptional interference with a legislative text, and in a penal statute one must be even more convinced of its necessity. It is surgery rather than therapeutics.

84    In Delaney v Celon (1980) 24 SASR 443, Jacobs J construed “or” in a crimes compensation statute as meaning “and, in an appropriate case”, with the consequence that two types of application were not mutually exclusive, but could co-exist –

(7)    Subject to this Act, on an application under this section the court may order—

(a)    that the victim be paid by the Crown such amount as the court thinks fit by way of compensation for the injury suffered by him;

or

(b)    that the dependants of a dead victim be paid by the Crown such amount as the court thinks fit by way of compensation for the financial loss suffered by them (to be proportioned between the various claimants as the court thinks fit),

together with such amount (if any) by way of costs as the court thinks fit.

85    In Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 the Full Court (Burchett, Branson and Tamberlin JJ) considered the Minister’s power to refuse or cancel a visa in s 501(1) of the Migration Act 1958 (Cth), as in force at the relevant time. The power was engaged if, inter alia –

(2)    … the Minister:

(a)    having regard to:

(i)    the person’s past criminal conduct; or

(ii)    the person’s general conduct;

is satisfied that the person is not of good character.

…

86    The Full Court held at 194-195 that it was not conceivable that Parliament intended that a conclusion as to a person’s good character should be based exclusively on past criminal conduct, without regard being had to any recent good conduct, whether or not falling within the description of “general conduct”. Accordingly, s 502(2) did not limit the matters to which the Minister should have regard, and having regard to context, the word “or” should not be read as strictly disjunctive, but was to be read as –

… a kind of hybrid of disjunctive and conjunctive, equivalent to “or, or as well”, conveying the meaning that the decision may be reached having regard to either or both of the kinds of conduct referred to.

87    In Pileggi v Australian Sports Drug Agency [2004] FCA 955; 138 FCR 107, Kenny J considered the proper construction of reg 17(1) of the Australian Sports Drug Agency Regulations 1999 (Cth), which was in the following terms –

(1)    The Agency may ask a competitor for a sample orally or by written notice.

88    Kenny J rejected a submission that had been advanced on behalf of the applicant that would require a lawful request to be either oral or in writing, but not a combination of oral and written communications. Her Honour read the word “and” for the word “or”, stating at [37] –

37.    … A literal reading of reg 17 might provide some support for the applicant’s contention. Thus, reg 17(1) provides that ADSA may ask a competitor for a sample “orally or by written notice” (emphasis added). Counsel for the applicant offered no other justification for this approach. In contrast, a purposive approach to interpretation would support reading the word “and” for the word “or”; and, having regard to the matters mentioned in [43]-[44] and ss 15AA and 46 of the Acts Interpretation Act, this approach is to be preferred: see Smith v Papamihail (1998) 88 FCR 80, at 88-89 per Carr J, followed in Re Peat Resources of Australia Pty Ltd; Ex parte Pollock (2004) 181 FLR 454 at [23] per Malcolm CJ, see also [98] per Steytler J and [115] per McKechnie J; and Pearce and Geddes, Statutory Interpretation in Australia (5th ed, 2001), para 2.25. A request under reg 17 will be made when, viewed objectively and having regard to the attendant circumstances, the words used clearly convey to the competitor that he or she is being asked to provide a sample at a particular place and time. Regulation 17(2) makes express provision for this statement of place and time.

89    For the purposes of determining the proper construction of s 11(b) of the ESOS Act, I take as a starting point the approach of Lord Wilberforce in Federal Steam Navigation Co Ltd v Department of Trade and Industry, which is not to treat the question in issue as being whether “or” means “and”, because that is an oversimplification. The true question is what idea is conveyed by s 11(b) as a whole, having regard to its text, context, and purpose in the way explained in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue at [47].

90    I do not accept the primary construction advanced on behalf of the applicant, namely that s 11(b) is ambulatory so that there are exclusionary alternatives, namely that “will comply” is relevant only to a provider yet to be registered, and “is complying” is relevant only to a registered provider. For the reasons that follow, the assumption underlying that submission fails because within the four corners of the ESOS Act, both limbs of s 11 are capable of being applicable to both categories of provider. Nor do I accept the alternative literal construction advanced by counsel for the applicant that in all cases it is sufficient if either limb is engaged. Such a construction would give the decision-maker an arbitrary choice, without reference to any express criteria, and would border on the absurd in the context of the objects of the legislation.

91    Part 4 of the ESOS Act makes provision for the making of a national code by the Minister having as its purpose the provision of nationally consistent standards and procedures for registered providers, and those who deliver educational services on behalf of registered providers: s 34. Under s 85 of the ESOS Act, the actions that may be taken by an ESOS agency against a registered provider in respect of a breach of the code extend to taking action against a provider even if the provider was not yet registered at the time of the relevant breach –

85    ESOS agency may take action for breaches occurring before provider was registered

The ESOS agency for a registered provider may take action against the provider under section 83 even if the provider was not yet registered at the time of the relevant breach.

92    It is therefore within the contemplation of the ESOS Act that a provider that was not registered at the relevant time may be assessed as not complying, or as having not complied, with the national code. That may occur at the time the decision-maker assesses whether the registration requirements are met, and it may occur after registration, as s 85 provides. By way of example, under Part C of the National Code 2017 there are requirements that relate to applications for registration and re-registration in the nature of information that is required. The introduction to Part D of the National Code 2017 refers to these requirements –

These standards detail the specific requirements registered providers must meet to comply with their obligations. These obligations need to be met at the point of CRICOS registration and throughout the CRICOS registration period. Obligations and requirements that relate specifically to the registration process for CRICOS purposes are covered under Part C.

(Emphasis added.)

93    Likewise, Standard 11 of the National Code 2018 contains additional registration requirements, which include a requirement to seek certain approvals under Standard 11.1, and the provision of information as requested by the ESOS Agency under Standard 11.2.

94    In my judgment, the idea conveyed by s 11(b) of the ESOS Act is that the decision-maker should be satisfied that the provider, or registered provider, is complying, and will comply, with such of the provisions of the Act and the instruments referred to in the paragraph that are applicable to that provider. This idea is conveyed by the text of s 11(b) in a compressed, rolled-up way. Not all provisions of all instruments referred to in s 11(b) will be applicable to all applicants to which the criteria in s 11 must be applied. This proposition has different dimensions to it. The provisions of Part 3 of the ESOS Act require compliance by registered providers. As I have identified, some of those provisions require the maintenance of a continuing state of affairs, such as the keeping of records. Other provisions require a positive act of compliance if and when the occasion arises. And other provisions proscribe particular acts or conduct by a registered provider. Similarly, the national code has some provisions which require a state of continuing compliance by a registered provider, as well as other provisions requiring compliance if and when the occasion arises. Accordingly, in relation to a registered provider seeking renewal of its registration, both limbs of s 11(b) have potential work to do.

95    I have come to the same conclusion in relation to providers which are yet to be registered providers. Both limbs of s 11(b) of the Act have application, because the Act contemplates that a provider that applies to be a registered provider may be required to comply with the national code prior to registration. That compliance may be assessed at the time of making a decision under s 10(1) of the Act, and if it is later ascertained after registration that there was a breach of a requirement under the national code relating to the application for registration, the ESOS agency may take action under s 83 of the Act, as s 85 of the Act permits.

96    There are other contextual matters that are relevant to the primary construction advanced on behalf of the applicant. The first relates to the history of the provision. As I have mentioned, counsel for the respondent submitted that s 15AC of the Acts Interpretation Act is engaged –

15AC    Changes to style not to affect meaning

Where:

(a)    an Act has expressed an idea in a particular form of words; and

(b)    a later Act appears to have expressed the same idea in a different form of words for the purpose of using a clearer style;

the ideas shall not be taken to be different merely because different forms of words were used.

97    I do not consider that s 15AC is engaged here. Section 2 of the Acts Interpretation Act provides that the Acts Interpretation Act applies to all Acts. I will assume that an amending Act may be a “later Act” for the purposes of s 15AC(b). However, I do not accept that s 11 was introduced by the 2016 amendments for the purpose of expressing the same idea in a different form of words “for the purpose of using a clearer style”. The amending Act, which was the Education Services for Overseas Students Amendment (Streamlining Regulation) Act 2015 (Cth), does not state any such purpose, and nor does the explanatory memorandum to the Bill: cf, Income Tax Assessment Act 1997 (Cth), s 1.3. One of the main purposes of the amendments claimed by the explanatory memorandum and supported by the text of the amendments was to vest the power of registration in the ESOS agency directly, whereas previously ASQA had acted as a delegate of the Secretary, and had the dual functions to which I referred at [20] above. To that extent, there was a substantive change, which is not to be characterised as a change for the purpose of expressing the same idea in a clearer style. Coupled with that principal change were other changes. The question of compliance with the ELICOS Standards or Foundation Program Standards, if applicable to the provider, was introduced. Further, in relation to s 11(b) a change in focus from that in the repealed s 9AB(1)(f) was introduced, namely from a state of “no reason to believe” that the provider “is not complying, or will not comply” with the Act and the national code, to a positive state of satisfaction of compliance. In W A Pines Pty Ltd v Bannerman [1980] FCA 79; 30 ALR 559, Lockhart J, with whom Bowen CJ agreed, reviewed a number of authorities and construed the phrase “reason to believe” in s 155 of the Trade Practices Act 1974 (Cth) as requiring actual belief, together with reasonable grounds or cause for that belief: at 570. In George v Rockett [1990] HCA 26; 170 CLR 104 at 112, the court stated that “[w]hen a statute prescribes that there must be ‘reasonable grounds’ for a state of mind – including suspicion and belief – it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person”, citing (inter alia) Lord Atkin’s “famous, and now orthodox” dissenting speech in Liversidge v Anderson [1942] AC 206, and the reasons of Lockhart J in W A Pines Pty Ltd v Bannerman. See also, Stuart v Kirkland-Veenstra [2009] HCA 15; 237 CLR 215 at [56] (French CJ). The Court in George v Rockett also addressed, at 116, what constitutes a state of belief, describing it as an inclination of the mind that may rest on more slender evidence than proof –

The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.

98    As to the negative form, “the Secretary has no reason to believe”, appearing in s 9AB(1)(f) of the ESOS Act before the 2016 amendments, it was the absence of a belief formed on reasonable grounds that was the relevant subjective jurisdictional fact. As a corollary, the presence of such a belief might be regarded as a disqualifying jurisdictional fact. On the other hand, after the 2016 amendments, under s 11(b) the decision-maker must be satisfied of the existence of compliance and of an affirmative estimation as to future compliance. Although no onus of proof is involved, s 11(b) requires the existence of an affirmative state of satisfaction in order to be engaged. In addressing the question of satisfaction, the decision-maker must act according to law. A failure to be satisfied may be reviewable for error of law, or jurisdictional error, on one of the range of grounds essayed in Avon Downs Pty Ltd v Commissioner of Taxation (Cth) [1949] HCA 26; 78 CLR 353 at 360 (Dixon J), and Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [119]-[131] (Crennan and Bell JJ), and see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 275-276 (Brennan CJ, Toohey, McHugh and Gummow JJ).

99    For the above reasons, in relation to the decision-maker’s appraisal of compliance by a registered provider applying for renewal of registration under the ESOS Act, there is a difference between s 9AB(1)(f) of the Act before the 2016 amendments, and s 11(b) after the amendments, that does not amount to a mere change in style of language.

100    However, the rejection of the submission of counsel for the respondent in relation to the application of s 15AC of the Acts Interpretation Act does not entail an acceptance that the history of the provision supports the construction advanced on behalf of the applicant. In relation to the primary submission advanced on behalf of the applicant, I do not consider that the text, history, or context of the provision supports a construction that would have the decision-maker appraise for the purposes of s 11 the prospect of future compliance of an applicant for registration, but not an applicant for renewal of registration. In the absence of a clearly expressed intention, that is a most improbable outcome that is not supported by the surrounding provisions of the Act, and is not consistent with its objects. The Act limits the period of registration, including upon renewal, to seven years: s 10A(2)(e); s 10G(2)(f). There are provisions providing for the extension or continuation of registration in certain circumstances, but subject to those provisions the Act evinces a policy that registration will end unless renewed. By incorporating as a jurisdictional fact that a provider “meets the registration requirements” into s 10E(1) relating to the consideration of an application for renewal of registration, the Act evinces an intention that in order to obtain renewal of registration, an applicant must meet the same extensive registration requirements of s 11, just as an applicant for initial registration would. The process of a renewal application includes the possibility of an audit of any matter relating to the application: s 11A(4)(b). It would be an extraordinary outcome if the future compliance of a provider not yet registered was relevant under s 11(b), yet upon renewal the future compliance of a registered provider was not relevant in circumstances where there would usually be a history from which the likelihood of future compliance might be estimated.

101    For all the above reasons, the applicant’s claim that the Tribunal fell into error in its construction of s 11(b) of the ESOS Act is rejected. When regard is had to the full legislative context, the word “or” in the phrase “is complying, or will comply” recognises the different types of obligations under the Act and the national code with which compliance is required, and is not to be construed so as to differentiate between providers yet to be registered, and registered providers seeking renewal, as counsel for the applicant submitted. The idea conveyed by the provision is that the decision-maker is to be satisfied as to whether an applicant for registration, renewal of registration, or the addition of a course, is complying or will comply, as appropriate, with the vast range of obligations arising under the legislation and the relevant legislative instruments having regard to their different character: cf, Delaney v Celon (1980) 24 SASR 443 at 445 (Jacobs J). This does not involve the brute force substitution of the word “or” by the word “and” on the ground that there has been some obvious drafting slip. It is an ambulatory construction that is directed across those obligations that require a continuing state of compliance at the time of the consideration of the application, and those obligations that require compliance if and when the occasion arises. Past non-compliance with any type of obligation may inform the decision-maker’s appraisal of the prospect of future compliance. This is a purposive construction of s 11(b) that is harmonious with the other provisions of the Act and the relevant legislative instruments such as the national code, and is to be preferred over all other constructions: Acts Interpretation Act, s 15AA. It accommodates the fact that some obligations to which a provider applicant may be subject will require compliance at the time of application, and others will require future compliance, and gives effect to the objects of the Act by requiring as a subjective jurisdictional fact satisfaction by the ESOS agency of both current compliance and prospective compliance.

Analysis – Question 2 – Did the Tribunal give adequate reasons?

102    Having regard to my conclusions in relation to the correct construction of s 11(b) of the ESOS Act, the second question of law raised by the amended notice of appeal falls away. While there are indications in the Tribunal’s reasons going both ways as to whether there was a finding about whether the applicant “is complying” with the ESOS Act and the relevant legislative instruments, it is telling that there is no finding about “is not complying” in [205] when the Tribunal made its alternative findings by reference to s 9AB(1)(f)(i) of the ESOS Act before the 2016 amendments. It is also relevant to have regard to the Tribunal’s finding at [196] in relation to the applicant’s compliance with the NVR Act, where there was an unambiguous finding that the applicant “complies with” the requirements of s 17(1) of that Act. In relation to s 11(b) of the ESOS Act, the better view is that the Tribunal’s reasons fall short of expressing any finding about whether the applicant “is complying”. That is because the reasons proceed on the premise that it was sufficient for the Tribunal to find that it was not satisfied that the applicant “will comply” with the ESOS Act and the relevant legislative instruments, and it follows from my conclusions in relation to the first question of law that this approach did not involve any error of law.

Analysis – Question 3 – Did the Tribunal act unreasonably or otherwise act in excess of jurisdiction by failing to address the question of conditions?

103    The Tribunal’s jurisdiction to review the decision not to renew the registration of the applicant under s 9AB of the ESOS Act was conferred by s 176 of the ESOS Act, as in force prior to the 2016 amendments. As I recorded at [21] above, the Tribunal then determined that in undertaking its review, it should do so by reference to the ESOS Act following the 2016 amendments. The task of the Tribunal was to stand in the shoes of ASQA as the primary decision-maker and determine for itself, on the material before it, the decision that could and should be made in the exercise of the powers conferred on ASQA, before exercising one of the powers available to the Tribunal under s 43(1) of the AAT Act: Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; 266 CLR 250 at [51] (Bell, Gageler, Gordon and Edelman JJ). The Tribunal understood its task. That is apparent from the discussion of authorities at [97] to [100] of its reasons regarding the proper approach to proceedings in the Tribunal, and its reference to s 43(1) of the AAT Act at [199].

104    In undertaking its review, the Tribunal was subject to the exhortations in s 2A of the AAT Act, including to pursue the objective of providing a mechanism of review that was “fair, just, economical, informal and quick”, and it had a duty under s 39(1) of the AAT Act to ensure that the applicant had a reasonable opportunity to present its case. In addition, the conferral of the various duties, functions and powers on the Tribunal were subject to a duty implied from common law principles of interpretation to act reasonably: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [53] (Gageler J).

105    The Tribunal was required to give reasons for its decision, and where (as here) those reasons were in writing, the reasons were required to include the Tribunal’s findings “on material questions of fact and a reference to the evidence or other material on which the findings were based”: AAT Act, s 43(2) and (2B). The corollary of the duty to ensure that the applicant had a reasonable opportunity to present its case was that the Tribunal was required to consider the case that was presented to it.

106    On this appeal, which is in the nature of judicial review in the original jurisdiction of the court, the applicant seeks to impeach the Tribunal’s exercise of power, and bears the onus of establishing its case. It follows that the applicant bears the onus of establishing from a failure by the Tribunal to refer to any matter in its reasons, that the issue was overlooked: cf, Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 at [67] (Gummow J), citing Industrial Equity Ltd v Deputy Commissioner of Taxation (1990) 170 CLR 649 at 671-672 (Gaudron J). This is a question of fact, and not surmise, such that the court must achieve an affirmative state of satisfaction having regard to all the circumstances that the issue was overlooked: see, Kentucky Fried Chicken Pty Ltd v Gantidis [1979] HCA 20; 140 CLR 675 at 680 (Barwick CJ). The Tribunal was not obliged in its reasons to refer to every piece of evidence and every contention. Having regard to the obligation to give reasons in s 43(2B) of the AAT Act, the omission of a matter from written reasons may, but will not automatically, lead to a conclusion that the Tribunal has erred: see ETA067 v Republic of Nauru [2018] HCA 46; 92 ALJR 1003 at [13].

107    A failure by the Tribunal to address an argument which is material to the outcome may amount to a denial of procedural fairness, or a failure constructively to discharge the Tribunal’s review function: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 at [24]-[25] (Gummow and Callinan JJ, Hayne J agreeing). A failure of either type amounts to an error of law, thereby engaging the court’s jurisdiction on appeal under s 44(1) of the AAT Act.

108    There were two interconnected strands to the applicant’s submissions made in support of the third question of law. First, that the Tribunal overlooked the applicant’s submission as to the imposition of conditions upon registration under the ESOS Act. Second, that the Tribunal had acted unreasonably by failing to consider whether the imposition of a condition similar to the condition that it imposed on the renewal of the applicant’s registration under the NVR Act would be sufficient for it to be satisfied that the applicant “will comply” with the ESOS Act and the national code. In submitting that the failure to address the question of a condition was legally unreasonable, counsel addressed the manner in which the Tribunal discharged its review function, rather than the outcome. Therefore, it was no part of counsel’s submissions that compliance with the implied condition that the Tribunal act reasonably required it to accept the submission that the applicant’s registration under the ESOS Act be renewed subject to conditions. Rather, it was submitted that the failure to consider the question of conditions as raised in written submissions made on the applicant’s behalf was a specific error in the decision-making process that was encompassed by the broad sense of the concept of legal unreasonableness referred to in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [72] (Hayne, Kiefel and Bell JJ). Those submissions are to be assessed having regard to the high threshold required to establish legal unreasonableness: Minister for Home Affairs v DUA16 [2020] HCA 46; 95 ALJR 54 at [26] (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ), citing Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [11] (Kiefel CJ), [52] (Gageler J), [89] (Nettle and Gordon JJ), and [135] (Edelman J).

109    The Tribunal’s reasons are not to be scrutinised “with an eye keenly attuned to error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). In WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593, French, Sackville and Hely JJ at [46]-[47] gave consideration to circumstances where an omission from written reasons may lead to the conclusion that a matter has been overlooked –

46    It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

47    The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

110    In order to evaluate the parties’ submissions in relation to the third question of law raised by the applicant, it is necessary to give some attention, but not over-zealous attention, to the submissions that were put to the Tribunal, and to the Tribunal’s reasons, to which I have referred at [42]-[46] above. The submission that was advanced to the Tribunal on behalf of the applicant proposed one compound condition that was directed to the renewal of its registration under both the ESOS Act and the NVR Act. The reporting that was proposed by that condition related to the applicant’s obligations under both Acts. Whilst there was no separate set of conditions proposed for the ESOS Act, if the Tribunal were minded to accept the proposed condition, from a practical point of view it would likely have been required to impose conditions on the applicant’s registration under each Act.

111    As I have recounted earlier in these reasons at [44]-[45], the Tribunal acknowledged its power to impose conditions upon ESOS Act registration pursuant to s 10B of the Act. Further, it is apparent from [95] of the Tribunal’s reasons that it was alive to its obligation to use a risk management approach, by which it would “need to take account of conditions, if any, that, if met would enable the registered provider to comply with the registration requirements”. At [103] of the reasons and by reference to ASQA’s powers to accept enforceable undertakings and impose conditions, the Tribunal described a “scheme of registration” under the ESOS Act “that permits a provider to undertake rectification work after receiving an adverse decision from the ESOS agency and lodging an application for review of that decision in the Tribunal”.

112    At [200] the Tribunal addressed the question of conditions in relation to the renewal of registration under the NVR Act. In that paragraph, the Tribunal referred to three of the four matters upon which the applicant proposed the private consultant, Ms Hodge, would report to ASQA as part of the proposed conditions, and noted that the proposed conditions involved Ms Hodge assisting ASQA in its regulatory function. At [201], the Tribunal rejected the conditions in the terms proposed by the applicant. First, the Tribunal did not think that Ms Hodge should be asked to undertake the proposed role. Second the Tribunal considered that the investigative powers under the NVR Act were given to ASQA, and that the Tribunal should not impose a condition that had the effect of delegating those powers when it was ASQA, and not the Tribunal that should engage consultants. In coming to this conclusion, the Tribunal referred to ASQA’s power under s 184 of the NVR Act to engage consultants to assist in the performance of its functions. As I noted at [25] above, the functions conferred on ASQA under s 157 of the NVR Act included the functions conferred by or under the ESOS Act. Nonetheless, the Tribunal determined to renew the applicant’s registration under the NVR Act, and exercised a discretion to impose the two conditions to which I referred at [46] above involving engaging a consultant to oversee compliance, and implementing appropriate systems to ensure compliance, and enforcing compliance with those systems. Those conditions were materially different from the 12 month external audit report by a consultant that the applicant had proposed to the Tribunal.

113    The conditions upon registration under the NVR Act were imposed by the Tribunal in circumstances where a mandatory consideration under s 17(1) of the NVR Act was whether the applicant for registration or renewal of registration “complies with” the VET Quality Framework and the applicable conditions of registration, and at [196] the Tribunal made a finding that it was satisfied that the applicant complied with the requirements of s 17(1) of the NVR Act. Unlike the ESOS Act, there was no mandatory requirement under the NVR Act that the Tribunal be satisfied that the applicant “will comply” with those provisions. Therefore, for the purposes of the NVR Act, the imposition of the conditions could not have been to support any mandatory state of satisfaction that the applicant would comply with the requirements in the future.

114    At [204] of its reasons, the Tribunal switched its attention to renewal of registration under the ESOS Act. The Tribunal recounted the relevant test under that Act and distinguished it from the relevant test under the NVR Act. The Tribunal expressly recognised that it must use a risk management approach. The operative part of the Tribunal’s conclusion is stated in one sentence of [204] –

Given its past history and given the scope of the work that had to be undertaken by the RTO Doctor, I am not satisfied that [the applicant] will comply with the amended ESOS Act and the National Code.

115    There is no express reference in the Tribunal’s conclusion to any consideration that renewal under the ESOS Act be the subject of any conditions, such as the applicant had proposed, or the conditions that the Tribunal had decided to impose in relation to registration under the NVR Act. This omission must be weighed in the light of all the circumstances of the proceedings. As the guidance from WAEE at [47], extracted above, provides, the inference that a matter has been overlooked is not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point.

116    In addressing the third question of law raised by the applicant, there are two issues to be examined. First, did the Tribunal give consideration to the condition proposed by the applicant in its written submissions? Second, in relation to renewal of registration under the ESOS Act, was the Tribunal required to, and did it consider conditions that corresponded to the conditions to which renewal of the applicant’s registration under the NVR Act was subject?

117    In relation to the first issue, reviewing the Tribunal’s reasons as a whole, I am not persuaded to draw an inference that the Tribunal failed to consider the condition proposed by the applicant in its submissions in respect of the applicant’s ESOS Act registration. The following features lead me to that view. The Tribunal’s reasons were comprehensive. The issue of imposing conditions under the ESOS Act was raised. The Tribunal was aware of its power to impose conditions to secure compliance with registration requirements, which was tied up with the mandatory risk management approach. The Tribunal identified its view that the power to impose conditions evinced a scheme of registration whereby compliance could be achieved by the Tribunal’s imposition of conditions after ASQA had made an adverse decision, as was the case in respect of the applicant. The Tribunal must have read the applicant’s submission as to imposition of a condition, which was a compound submission that included reference to “reporting obligations under the ESOS Act”, thereby directing attention to registration under that Act.

118    The Tribunal expressed a general view at [201] of its reasons that the applicant’s proposed condition sought to install Ms Hodge, a private consultant, in a position whereby she would assist ASQA’s regulatory function, which was undesirable. The rejection of the proposed condition on that basis in respect of the NVR Act was dispositive of the submission for all purposes. That is because the power of ASQA under s 184 of the NVR Act to engage consultants, upon which the Tribunal did not wish to encroach, was exercisable in the performance of all ASQA’s functions, which as I have identified, included the functions conferred by the ESOS Act. The Tribunal’s rejection in the context of the NVR Act of the rolled-up set of conditions proposed by the applicant necessarily amounted to a rejection of the proposed conditions to the extent that they were directed to renewal of registration under the ESOS Act, and it was unnecessary for the Tribunal to state so expressly. If I am wrong in this analysis, then for the reasons I have given I am of the further view that there was no realistic possibility that the Tribunal would have taken a different view of the conditions proposed by the applicant in relation to the question of renewal of registration under the ESOS Act, because the same basis for their rejection would necessarily arise.

119    As to the second issue, the Tribunal was not required, in order to comply with the implied condition on the exercise of its jurisdiction to act reasonably, to consider conditions on registration at large. Counsel for the applicant did not submit otherwise, but submitted that it was anomalous for the Tribunal to have imposed a condition on renewal of registration under the NVR Act, but not under the ESOS Act.

120    I am not persuaded that, having rejected the condition that was the subject of the applicant’s submission, the Tribunal acted unreasonably by failing to consider the imposition of different conditions that corresponded to the conditions imposed upon registration under the NVR Act. As I have already stated, the Tribunal exercised a discretion to impose conditions under the NVR Act which were not in support of any mandatory state of satisfaction that the applicant would comply in future. On the contrary, the Tribunal’s reasons at [195]-[197] and [202] convey that the Tribunal had “grave concerns” about the applicant’s future compliance with the Vet Quality Framework, having regard to the applicant’s “systemic failures”. However, by reference to s 17(1) of the NVR Act, the Tribunal limited its inquiry to whether the applicant “complies with” the VET Quality Framework and the applicable conditions for registration. Being satisfied that the applicant at that point in time complied with the relevant obligations, the Tribunal felt bound to set aside ASQA’s decision and renew the applicant’s registration. In those circumstances, the conditions that it imposed under the NVR Act were directed to ameliorating its grave concerns, but not to the extent of eliminating its concerns about the likelihood of compliance, because the Tribunal stated that it expected ASQA to conduct an audit.

121    As the legislation requires, and as the Tribunal acknowledged, the approach to renewal of registration under the ESOS Act was different. The relevant tipping point for the Tribunal was an evaluation of whether the applicant “will comply” with the ESOS Act and the national code. The relevant part of the Tribunal’s reasons at [204] in support of its refusal to renew registration under the ESOS Act are terse when read in isolation. But in all of the circumstances, it should be inferred that the Tribunal was well aware that renewal of registration under the ESOS Act might be subject to conditions, but conditions like those imposed under the NVR Act were, in its estimation, not material to an evaluation of whether, given the applicant’s history of breaches to which the Tribunal referred, it was satisfied that the applicant “will comply”. And given the different criteria for registration and the matters to which I referred at [120] above, there was no necessary anomaly in imposing conditions under the NVR Act, but not considering corresponding conditions to be material in evaluating the question of future compliance for the purposes of s 11(b) of the ESOS Act. It was not, on that basis, legally unreasonable for the Tribunal to undertake or record in its reasons a different process of reasoning in respect of the ESOS Act to that taken in respect of the NVR Act, including as to the imposition of conditions. It was not necessary for the Tribunal to undertake a checklist-type exercise to ensure that the reasons for the decision made under the NVR Act mirrored that made under the ESOS Act, so as to avoid the anomaly which counsel for the applicant advanced on this question, which anomaly I reject for the reasons given above.

122    For completeness, it appears, as counsel for the respondent submitted, that the Tribunal made a deliberate choice to accept the submission advanced on behalf of ASQA to which I referred at [43] above, namely that registration be renewed under the NVR Act, but not under the ESOS Act. But this submission of ASQA to the Tribunal was not made in response to the applicant’s proposal that there be conditions, and this is not a decisive factor in my reasoning.

Conclusion

123    The appeal will be dismissed. I will hear the parties on the question of costs and consequential orders.

Associate:

Dated:    24 June 2021