Echelon National Security Agency Pty Ltd and Australian Skills Quality Authority [2014] AATA 151 (25 February 2014)

Last Updated: 24 March 2014

[2014] AATA 151

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/3715
Re	Echelon National Security Agency Pty Ltd
	APPLICANT
And	Australian Skills Quality Authority
	RESPONDENT

WRITTEN REASONS FOR ORAL INTERLOCUTORY DECISION

Tribunal	The Hon R J Groom AO (Deputy President)
Date	25 February 2014
Date of Written Reasons Place	19 March 2014 Hobart

The Tribunal has jurisdiction to consider and determine whether the applicant satisfies the Fit and Proper Person Requirements made pursuant to the National Vocational Education and Training Regulation Act 2011.

[Sgd Hon R J Groom]
Deputy President

PRACTICE AND PROCEDURE – jurisdiction – applicant had applied for registration as a registered training organisation – application rejected because the applicant failed to satisfy certain conditions for registration – after application for review lodged by the applicant the respondent raised an entirely new ground for rejection of registration – whether Tribunal has jurisdiction to consider and determine this new ground for rejection of registration – Tribunal does have jurisdiction to consider and determine whether the applicant satisfies the Fit and Proper Person Requirements made pursuant to the National Vocational Education and Training Regulation Act 2011

Administrative Appeals Tribunal Act 1975, ss 25(1)(a), 43(1)

National Vocational Education and Training Regulator Act 2011, ss 21, 22, 23, 24, 25, 26, 27, 28, 186(1), 203

Fit and Proper Person Requirements 2011

R v Moodie; Ex Parte Mithen (1977) 77 ALR 219

Shi v Migration Agents Registration Authority (2008) HCA 31

Re Control Investments Proprietary Limited v Australian Broadcasting Tribunal (1981) 3 ALD 88

Shi v Migration Agents Registration Authority (2007) FCAFC 59 (27 April 2007)

Secretary, Department of Social Security v Hodgson [1992] FCA 338; (1992) 27 ALD 309

Secretary, Department of Employment, Education, Training, Youth Affairs v McKay (1998) 58 ALD 130

WRITTEN REASONS FOR ORAL INTERLOCUTORY DECISION

The Hon R J Groom AO (Deputy President)


19 March 2014

1. Since the application for review was lodged the respondent has raised an entirely new issue which was not one of the reasons the respondent decided not to register the applicant as a registered training organisation.

The question for determination in this interlocutory proceeding is whether the Tribunal has jurisdiction to consider and determine this new issue, namely whether the applicant satisfies the Fit and Proper Person Requirements 2011 made pursuant to section 186(1) of the National Vocational Education and Training Regulator Act 2011 (“the Act”).

2. Mr Boland, solicitor for the applicant, has indicated that he concedes that the Tribunal does have jurisdiction to determine the “fit and proper person” issue. It is however necessary for the Tribunal to reach its own conclusion on the question of jurisdiction (see R v Moodie; Ex Parte Mithen (1977) 77 ALR 219 at 225).
3. By section 25(1)(a) of the Administrative Appeals Tribunal Act 1975, applications may be made to the Tribunal for the review of decisions made in the exercise of powers conferred by an enactment. The Tribunal’s powers on review are set out in section 43(1) of the AAT Act as follows::

“For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by a relevant enactment on the person who made the decision and shall make a decision in writing:

(a) affirming the decision under review;

(b) varying the decision under review; or

(c) setting aside the decision under review and:

(i) making a decision in substitution for the decision so set aside; or

(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

Tribunal must give reasons for its decision”.

4. The decision being reviewed in the present proceedings before the Tribunal is a decision dated 2 July 2013 rejecting an application by Echelon National Security Agency Proprietary Limited for Registration as a Registered Training Organisation.
5. The decision of 2 July 2013 was made by a delegate of the National VET Regulator, who is not a member of staff of the Regulator (see section 224 of the Act). An Application for Review can be made directly to the Tribunal in those circumstances (see section 203 of the Act). A decision to reject an application for registration is a reviewable decision (see section 199 of the Act). The grounds for rejecting the registration application were briefly described in the letter of 2 July 2013. The reason for rejection of the applicant’s application for registration was that the company had failed to comply with the conditions for registration set out in sections 21 to 28 of the Act. Those conditions are “SNR 4.2, 4.3, 4.4 and 4.5” as was explained in the delegate’s letter.
6. Some three months after the applicant had lodged its Application for Review the respondent’s solicitor, Mr Lloyd, informed the Tribunal in writing that a new issue had arisen in the proceedings. He stated:

“In its preparations for the proceedings the respondent has only recently been informed of conduct by the applicant that the respondent believes is in serious breach of the fit and proper persons standard made under section 186(1) of the NVR Act, for the applicant to become a registered training organisation, RTO”.

7. Mr Lloyd added:

“If the applicant does not satisfy the standards as a fit and proper person then it is in breach of section 23 of the NVR Act”.

8. The result of this new allegation was that the respondent was seeking to introduce an entirely new ground into the review proceedings. It was not one of the grounds considered by the delegate in making the reviewable decision of 2 July 2013. No decision had been made by the National VET Regulator that the applicant did not satisfy the Fit and Proper Person Requirements. At a telephone directions hearing held on 28 November 2013, I questioned whether the Tribunal had jurisdiction to review the allegation that the applicant was not a “fit and proper person”, as no decision had been made by the National VET Regulator on that particular issue. I invited written submissions on that question. I am grateful to both Mr Boland and Mr Lloyd for the written submissions they have made. I felt also that it was appropriate to provide an opportunity today for the parties to make further oral submissions.
9. It is essential that I proceed to hand down my decision on this issue today as the decision will assist in clarifying the scope of the review and the issues to be determined by the Tribunal at the hearing.
10. The facts in this case are markedly different from those in the decision of the High Court in Shi v Migration Agents Registration Authority (2008) HCA 31, which was handed down on 30 July 2008. In that case, the High Court held that the Tribunal was not confined to a consideration of the material available at the time of the Authority’s original decision but could consider the circumstances prevailing at the date of the Tribunal’s own decision. Unlike the facts of the present case in Shi the Authority had earlier made a decision that the Migration Agent involved was not a “fit and proper person” and also not a “person of integrity”.
11. In its decision in the Shi case the Tribunal considered fresh evidence which had not been available to the Authority when making its decision. The Tribunal decided that it was not satisfied, on the material then before it, that the agent was not a “fit and proper person” and not a “person of integrity”. In contrast, in the present case there has been no decision that the applicant was not a “fit and proper person” to carry out the functions of a registered training organisation. It should be noted that this is not simply a case where further information or material is now available to assist the Tribunal in determining whether the decision was a correct or preferable decision. Here there is now an entirely new and distinct ground alleged to be a further basis for rejection of the registration application.
12. It has long been recognised that the Tribunal, although having the trappings of a Court, does not apply the principles applicable to judicial review but is an instrument of executive government administration, though acting entirely independently in making its determination.
13. Davies J, then the President of the Tribunal, in Re Control Investments Proprietary Limited v Australian Broadcasting Tribunal (1981) 3 ALD 88 at 92 said as follows:

“But the provision (in s 43)“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... “ is not concerned to confer upon the Tribunal authority to limit its function but rather to confer upon it an amplitude of powers so that the Tribunal may exercise, if it is convenient and useful to do so, not only the decision- making power upon which the decision-maker relied, but all relevant powers and discretions which were conferred by the enactment upon the decision-maker. The provision extends the authority of the Tribunal so that it may more adequately exercise its function of reviewing, on the merits, the subject decision”.

14. Downes J in the Full Federal Court decision in Shi v Migration Agents Registration Authority (2007) FCAFC 59 (27 April 2007) said at paragraph 35:

“The Administrative Appeals Tribunal is not a Court. It does not exercise the Judicial power of the Commonwealth. It is an administrative decision-maker. It exercises the executive power of the Commonwealth. Administrative decision-making is almost always improved if it is based on the facts and circumstances as they are at the time of decision and not as they were in the past. Administrative decisions should always be made on this basis unless there are compelling reasons for doing otherwise. Sometimes, however, legislation conferring the decision-making power will, expressly or by implication, require the decision-maker to address a time prior to the decision and the facts and circumstances as they were at that time”.

15. His Honour added:

“The position is different with litigation before courts. Judicial power is concerned with resolving disputes between parties. The dispute must exist at the time proceedings are commenced and generally be defined by pleadings or other documents addressing that point in time. Courts, accordingly, focus much more on the circumstances as they were at the time the proceedings were commenced”.

16. In expressing his opinion as to the proper approach when deciding questions of jurisdiction, Kirby J said at paragraph 25 in the High Court decision in Shi:

“To resolve the question of whether the Tribunal has exceeded or mistaken its jurisdiction and powers a court must give close attention to the enabling legislation. It is undesirable to attempt universal or unqualified propositions. Here, the issue is how to define the jurisdiction and powers of the Tribunal in conducting a review of a decision of the authority, having regard to both the general provisions of the Administrative Appeals Tribunal Act, affording the power of review, and to the more specific provisions of the Migration Act, defining the characteristics of the decision that is subject to review. Only when all of the relevant features of the two inter-related statutes are understood can a correct decision be arrived at as to the ambit of the review in question and the manner in which it should be conducted”.

17. It is not in doubt that the Tribunal can and should generally consider any new material or evidence of relevance to the original decision and to the particular grounds identified by the original decision-maker. For example in the present case if there is new information about compliance with standards 4.2, 4.3. 4.4 and 4.5, then that information can properly be considered by the Tribunal. But what is the position if an entirely new ground has been raised?
18. Here the substantive and operative decision made by the authority was to reject Echelon’s application for registration. The grounds for that decision as expressed as “reasons” in the letter of 2 July 2013 were the alleged failures to comply with standards 4.2, 4.3, 4.4 and 4.5. Those standards are criteria for registration, but it is also apparent from a reading of the Act and in particular the Fit and Proper Person Requirements 2011 made pursuant to the Act, that those requirements must also be met for initial registration, renewal of registration as well as ongoing registration.
19. FPPR 3.2 provides:

“The requirements of this legislative instrument apply to NVR registered training organisations. The National VET Regulator will also consider these requirements when deciding whether to grant an application for initial registration or renewal of registration”.

20. In FPPR 4, “Criteria for Suitability for Registration” it states:

“In assessing whether a person who is an applicant for registration as an NVR registered training organisation, an applicant for renewal of registration as a NVR registered training organisation or who is a NVR registered training organisation meets the fit and proper person requirements, the National VET Regulator must have regard to the following considerations...”

21. FPPR4 sets out the various considerations, including (j) which is the consideration relied upon by the respondent. That consideration provides as follows:

“(j) whether the public is likely to have confidence in the person’s suitability to be involved in an organisation which provides or assesses national qualifications”.

22. The essential question here is should this Tribunal, while standing in the shoes of the original decision-maker, now consider this new ground which has arisen since the review application was lodged with the Tribunal.
23. In considering this question the Tribunal has found two decisions of the Federal Court to be most helpful.

The first decision is Secretary, Department of Social Security v Hodgson [1992] FCA 338; (1992) 27 ALD 309. I refer particularly to page 316 where Hill J said:

“The language of section 43 is quite clear and unambiguous. It empowers the tribunal to exercise all the powers and discretions conferred upon the original decision maker provided it does so for the purpose of reviewing a decision. Provided the necessary purpose is present, the power conferred upon the Tribunal is not otherwise limited”.

The other decision is Secretary, Department of Employment, Education, Training, Youth Affairs v McKay (1998) 58 ALD 130 in which Kenny J expressed the following view:

“It should be borne in mind that neither tribunal is confined to the decision making power upon which the decision maker relied, but is armed with all the powers and discretions of the original decision maker that are relevant to the review”.

24. In both those decisions the Federal Court held that the Tribunal did have jurisdiction to consider a new ground provided it was relevant to the decision under review. Different grounds were then considered which were not the basis of the original decision but which were relevant to that decision.
25. As a prospective registered training organisation cannot be registered if it is not a “fit and proper person” it seems to me that it is essential that issue also be determined when considering whether the decision rejecting Echelon’s application for registration was the correct or preferable decision. To decide otherwise is likely to lead to another decision by the Authority and perhaps a further application to this Tribunal with all the associated delay and costs involved.
26. The sensible administrative decision, and one which I believe accords with the law, is to hear and determine the question of whether the applicant is a “fit and proper person” as well as considering whether the applicant satisfies conditions for registration, in particular SNR 4.2, 4.3, 4.4 and 4.5.

DECISION

27. The Tribunal has jurisdiction to consider and determine whether the applicant satisfies the Fit and Proper Person Requirements made pursuant to the National Vocational Education and Training Regular Act 2011.

I certify that the preceding twenty-seven paragraphs are a true copy of the reasons for the interlocutory decision herein of The Hon R J Groom AO (Deputy President)

[Sgd]
Administrative Assistant

Dated : 19 March 2014

Date(s) of hearing	25 February 2014
Solicitors for the Applicant	Mr C Boland, Chris Boland Lawyers
Solicitors for the Respondent	Mr T Lloyd, Australian Skills Quality Authority