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Administrative Appeals Tribunal Act (1975) (Cth) - s 41

Administrative Review Tribunal Act 2024 (Cth) - s 32

National Vocational Education and Training Regulator Act 2011 (Cth) - s 9, s 56, s 57, s 59

Australian Securities and Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 18549

Barkly International College Pty Ltd and Australian Skills Quality Authority (Practice and Procedure) [2025] ARTA 242

Birdseye v Tax Practitioners Board [2020] AATA 1250; (2020) 82 AAR 241

Birdseye v Tax Practitioners Board [202] FCA 1235

Jonah and Commissioner, NDIS Quality and Safeguards Commission (Practice and procedure) [2025] ARTA 2582

Kaur v A_u_stralian Skills Quality Authority [2025] ARTA 491

Oaklands and Australian Securities and Investments Commission [2011] AATA 199

Poivedin and Australian Securities and Investments Commission [2018] AATA 124

Scott and Australian Securities and Investments Commission [2009] AATA 798

Stephan-Miller and National Disability Insurance Agency (Practice and procedure) [2025] ARTA 43

Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93

Zartaloudis v Tax Practitioners Board (Practice and Procedure) [2025] ARTA 2477

Explanatory Memorandum to the Administrative Review Tribunal Bill 2023 (Cth)

1. This statement records my reasons for granting a stay of the operation of the Respondent's decision to cancel the Applicant (RWTP's) CERT III in carpentry.
2. RWTP is 72 years old. He has worked since the age of 14 and is a former fire fighter and a builder with extensive experience in both the fire safety and building industries. He held an unrestricted builder's licence for more than 20 years and currently holds a restricted builders licence allowing him to work on building renovations, repairs and maintenance.
3. RWTP suffers from post-traumatic stress disorder and takes medication to assist with his day to day functionality. He has always supported himself and his wife financially and wants to keep working. He is not legally represented in these proceedings.
4. RWTP told the Tribunal that in 2022, changes to the Queensland Building and Construction Commission (QBCC) Fire Professional Licence specifications meant he needed to obtain a written CERT III in Carpentry (CERT III) to be registered to certify plumbing penetrations.
5. As of 19 May 2023, RWTP was registered with Harbour City College (the College) to complete his CERT III and received a certificate from the College on 15 March 2024 after being told he had sufficient recognised prior learning (RPL) to qualify.[1] RWTP paid $3,000 to the College for his CERT III.
6. On 27 October 2025, the Respondent decided to cancel RWTP's CERT III (the review decision).[2] This followed the Respondent's decision on 27 June 2025, to cancel the College's registration as a VET provider.[3]
7. RWTP complains he was only given 7 days to respond to a Notice of Intent from the Respondent before the decision was made to cancel his CERT III. At that particular time, he says he was out of email and phone contact on a holiday with his wife for their 50th wedding anniversary.
8. RWTP is seeking to have the review decision stayed pursuant to s 32 Administrative Review Tribunal Act 2024 (Cth) (Tribunal Act) pending the hearing and determination of his application to review the decision to cancel his CERT III. He says a stay is necessary so he can continue to work, certifying plumbing penetrations.
9. The Respondent opposes RWTP's application for a stay and in particular, cites public safety concerns and the public interest in its objectives as a regulator.
10. Before the Tribunal at the stay hearing were RWTP's application for the stay and brief submissions as well as supporting documents as evidence of his qualifications and experience. The Tribunal also referred to the s 23 Tribunal Act documents filed by the Respondent and its written submissions opposing the stay.

1. The primary position in Tribunal proceedings is that the decision which is the subject of the proceedings (the review decision) should continue to operate pending the hearing and determination of the application for review.[4]
2. Section 32(2) Tribunal Act permits the Tribunal to stay the operation of the review decision if the Tribunal considers that it is desirable to do so for the purposes of ensuring the effectiveness of the review. In deciding to grant a stay, the Tribunal may do so subject to conditions.[5]
3. The wording of s 32 Tribunal Act does not represent any material change from its predecessor, s 41 Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).[6]
4. As I observed recently in Zartaloudis v Tax Practitioners Board (Practice and Procedure),[7] to grant a stay, the Tribunal must be satisfied on the evidence and in all the relevant circumstances, that it is desirable to exercise its discretion for the purpose of ensuring the effectiveness of the review. In that regard the non-exhaustive principles set down in Re Scott v Australian Securities and Investments Commission,[8] may assist the Tribunal to evaluate the application. These are:
   • - the prospects of success for the substantive application;
   • - the consequence for the applicant if the stay application were refused;
   • - the public interest;
   • - the consequences for the respondent if the stay application is granted/refused;
   • - whether the application would be rendered nugatory if the stay application were not granted; and
   • - any other relevant matters.
5. As I also observed in Zartaloudis,[9] the correct approach 'is set out by the Full Court of the Federal Court in Australian Securities and Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 18549, where the Court found that any order made by the Tribunal which stays the operation or implementation of the decision under review must be one which secures the effectiveness of the hearing and determination of the application but permits the Tribunal to make orders bearing in mind the relevant statutory scheme - to prevent or modify consequences flowing from the reviewable decision in circumstances where it is possible the decision under review may be set aside.'[10]
6. The relevant question for the Tribunal in deciding whether to grant a stay is whether it is desirable to do so in all the circumstances to ensure the effectiveness of the review it is undertaking. While RWTP does not bear the onus of convincing the Tribunal to grant the stay application, it is certainly in his interest to provide evidence and submissions to support his application for a stay.[11]
7. The principles I have identified above are principles applicable to a range of Commonwealth agencies, including the Respondent. They are designed to apply flexibly as a guide for the Tribunal in considering the vast array of applications which come before this Tribunal concerning decisions made a wide variety of agencies, including Commonwealth regulators. They also permit the Tribunal to take into account the enabling legislation of the particular agency which has made the decision which is under review.
8. I have had regard to these principles in evaluating RWTP's application for a stay. In doing so I have borne in mind and will make reference to the relevant legislative framework of the National Vocational Education and Training Regulator Act 2011 (Cth) (NVR Act).

Assessment of RWTP's prospects for success on the substantive application

1. For the purposes of determining the stay application, all that is required is for the Tribunal to undertake a preliminary evaluation of RWTP's prospects, bearing in mind that the proceedings are at an early stage and he intends to lodge further evidence and may even issue a summons to the College or a related entity.[12]
2. The review decision was made by the Respondent without the benefit of any evidence or submissions from RWTP because he was uncontactable. The s 23 Tribunal Act documents disclose that the Respondent made decisions to cancel the accreditation of a large number of students (739 others) at the same time as it cancelled RWTP's CERT III.[13]
3. The lack of response from RWTP was cited a material factor in the review decision.[14]
4. RWTP's bundle of documents lodged in support of his stay application record his extensive professional and trade experience prior to attainment of his CERT III. It demonstrates significant practical experience and certification with a focus of fire safety as well as his longstanding building licences from the Queensland Building Services Authority.[15]
5. RWTP told the Tribunal in his application that he was advised by the College that he had the necessary RPL to complete the CERT III.[16]
6. The Respondent contends:

• - RWTP enrolled in the Certificate III on 14 February 2024, and completed the Certificate III on 15 March 2024;
• - The College's records show the Course Start date being listed as 19 May 2023 and the Course End date being listed as 10 April 2024;[17]
• - RWTP enrolled in 34 different units on 14 February 2024, and completed all of those units on 15 March 2024 (the same day the College recorded him as having completed the Certificate III);
• - for each unit, RWTP received an outcome of "20 - Competency achieved/pass", which is the code used when a student has been assessed as competent by way of course work;
• - RWTP conceded in his application to the Tribunal that he had little or no coaching from the above because he was told he "had enough info to support my RPL[18] on the Cert III";[19]
• - there is no evidence the College performed any assessment of RWTP's skills, qualifications, or experience, before issuing the Certificate III; and
• - the prior experience RWTP has cited in his stay application may leave some gaps in his qualifications for the CERT III.

1. The question of whether the College properly assessed RWTP's application and whether he had sufficient RPL are matters which will need to be explored at the final hearing, as they are relevant to the issues the Tribunal must consider in reviewing his substantive application, namely whether the necessary assessment was provided.[20] What is clear is that RWTP's prior experience and qualifications raise a material question about whether and how any RPL was taken into account.
2. Having heard from the parties and considered the evidence RWTP put before the Tribunal, I assess RWTP's case as at least arguable.[21] While RWTP's prospects on his application do not count against the grant of a stay they also do not strongly weigh in its favour.

Consequences for the Applicant if the stay is not granted

1. RWTP did not give sworn evidence at the stay hearing but presented his own case and answered questions from the Tribunal based on his oral and written submissions. He broke down twice during the hearing and clearly struggled to manage in a contested hearing environment, despite every courtesy being shown by the Respondent.
2. RWTP was open about the fact that he suffers from PTSD and depression which is managed by medication. There was no suggestion this affects his ability to work. To the contrary, I was left with the strong impression that RWTP's work plays an important role in his self-esteem and mental well-being. I am satisfied from the material RWTP put before the Tribunal that he has longstanding experience, skills and qualifications and that he is proud of and passionate about the depth of expertise he has gained in both sectors.
3. RWTP told the Tribunal he is committed to continuing to work to complete existing contracts as long as he can but that work will end in the next two weeks. He does not want to undertake physical work as a builder at his age.
4. Time is of the essence for RWTP, both because of his age but also because he cannot undertake certification work in plumbing given the cancellation of the CERT III. He told the Tribunal he has had to turn down work in light of the review decision.
5. RWTP also told the Tribunal he could not afford to presently undertake another accreditation course (which he estimates from inquiries would cost between $5,000 and $10,000).
6. In the circumstances, I am satisfied RWTP has presented a strong case for needing to continue his plumbing certification work and that he needed the CERT III paperwork to do so. From my observation of RWTP at the hearing, I was also persuaded there were compelling health and well-being reasons in favour of providing him some relief while these proceedings are heard and determined.
7. I have considered whether the Tribunal could address RWTP's difficulties by listing this application for final hearing as soon as possible and acknowledge both parties have agreed to a listing in late March 2026. An early hearing will go some way to addressing RWTP's sense of urgency and providing timely resolution to the application. However, it does not completely address his financial difficulties.
8. In light of the factors I have mentioned, I would assess this factor as weighing strongly in favour of the grant of a stay.

Would the application be rendered nugatory if a stay were not granted?

1. RWTP's distress in the hearing environment was such that he told the Tribunal and the Respondent he may not be able to continue with his application. He has since advised that he is prepared to continue but, his struggle with the process at the stay hearing made it clear that this dispute is causing him significant anxiety.
2. In practical terms however, there is no reason why a meaningful result could not be achieved on RWTP's application if a stay were not granted.

The consequences for the Respondent if the stay is granted and the public interest

1. The Respondent is a Commonwealth regulator tasked with protection of both students and the public.[22] It also has an interest in protecting Australia's reputation for quality education and training.[23] Like all regulators, it has a protective function and the objects in the NVR Act reflect this role.
2. The Respondent had assessed that urgent action was required in respect of a large number of student accreditations following its decision to deregister the College and because of concerns about unskilled people working in the building industry. It drew the Tribunal's attention in its submissions to the general consequences which may flow from non-compliance with NVR Act by providers and those accredited including:
   • - workplace failings by non-qualified poorly qualified employees;
   • - potential harm to health and safety in service provision areas;
   • - diminution in the value of qualifications; and
   • - further compliance issues if the regulator is perceived as not doing its job.
3. Before the Tribunal was material relevant to the Respondent's decision to deregister the College. I am satisfied based on these materials that serious allegations were raised against the College and investigated, leading to the decision to deregister. I accept these are matters which raise questions about the quality of the accreditations awarded to people such as RWTP. The Respondent submitted that risk generally attaches to allowing their accreditations to remain in place when the College has been assessed as not having provided adequate assessment. In a general sense, I appreciate these would be serious matters.
4. I also accept there is a significant public interest in a regulator such as the Respondent being allowed to pursue its functions without impediment as well as it being able to deter non-compliant behaviour by demonstrating it will act in necessary cases. It is certainly a factor which cannot be ignored and I accept that in some cases that public interest could outweigh factors weighing in favour of the grant of a stay (Australian International College Pty Ltd v Australian Skills Quality Authority).[24]
5. While these matters are important, they are not inviolable. The weight to be applied to them will necessarily depend upon the risks the Respondent is managing in a particular case and whether those risks continue to operate while the Tribunal is reviewing the operative decision. As the Tribunal has previously observed while in some cases, the mere notification to the public that a regulator has taken action will be sufficient to manage any risk and reputational issues and deter similar non-compliance,[25] in others, the ongoing risk may count against permitting conduct to continue while a review application is heard and determined.
6. In the present case, there are circumstances in play which are unique to RWTP. These need to be weighed against the potential adverse consequences for the Respondent, including any risk of undermining its role as a regulator. I consider those particular circumstances outweigh the public interest and potential for adverse consequences for the Respondent which I am persuaded are manageable in this case.
7. First, it is not lost on the Tribunal that the Respondent has cancelled the accreditations of a cohort of 740 people, including RWTP. It is reasonable to assume there will be individuals with a wide variety of skills and experience and risk profiles within that cohort of 740 but it is RWTP who has brought this application. RWTP is a mature worker who already has extensive prior experience in the building and fire sectors. He has demonstrated he has a longstanding and strong reputation in his field of work. He is not working as a carpenter but as a certifier.
8. These are matters which are unique to RWTP and need to be weighed in when considering any risk for the Regulator if the stay were granted to him.
9. RWTP produced to the Tribunal references from clients, evidence of his plumbing work over the past 5 years, evidence of his certification approvals from QBCC and his fire accreditations. He also explained the facts which led to his decision to enrol with the College. These facts show that he was undertaking the CERT III to overcome a change in requirements which meant he needed to update his skills for licensing purposes. They also suggest that RWTP might have significant RPL for the CERT III.
10. In such circumstances, I am persuaded RWTP presents as a low risk to continue working in plumbing certification. Further, a grant of a stay to RWTP could still leave up to 739 other cancellations in place - a significant regulatory result for the Respondent.
11. Second, the evidence suggests the Respondent cancelled 740 people's accreditations (including RWTP's) on the basis that none had responded to its Notice of Intent.[26] This is corroborated by the statement of reasons for the review decision which suggests RWTP's failure to respond was a key factor in the review decision.[27] It is not lost on the Tribunal that at the time the Respondent's decision was made, it was not in a position to know of and assess RWTP's circumstances or prior experience and skills. I accept it is presently unknown whether and to what extent this may be determinative of the substantive application. However, it is material to RWTP's stay application.
12. Finally, the Respondent contends and I accept that it is relevant that the 'matter' in issue was found to require urgent action under ss 59(1)(a) and 59(2)(a) NVR Act to protect the safety of workers and the public in the building industry. However it is not determinative of the stay application and it certainly does not operate to constrain the Tribunal's exercise of its discretion under s 32(2) Tribunal Act.
13. In this case that 'urgent action' was taken against a large cohort of people on the basis that they were likely to be working in the building industry and so there was potential risk to them and the public if they were not properly trained for their CERT III. The assessment did not result from an individual assessment of RWTP's case. No evidence was before the Tribunal that RWTP's case was assessed as presenting a particular risk either before or following the Respondent's decision, which is understandable given the Respondent had not heard from RWTP before the review decision was made. For the purposes of his stay application, RWTP's risk profile is relevant. And I have assessed it as low. I am not satisfied the fact that the Respondent took urgent action to cancel the student accreditations undermines that assessment or renders it irrelevant or of little weight.
14. In all the circumstances, I would assess the adverse consequences to the Respondent and the public interest as moderately weighing against the grant of a stay of the decision to RWTP.

1. There can be no doubt that the Respondent's decision to cancel the registration of the College was a significant one which cannot be taken lightly. The related decisions made to cancel the accreditations of 740 students of the College are also significant. It remains the case, regardless of the Tribunal's decision on this stay application, that significant regulatory action has been taken by the Respondent in relation to Harbour City College.
2. However, I am not satisfied that this regulatory outcome would be undermined by the grant of a short stay to RWTP. Nor am I satisfied on the evidence that the grant of a stay to RWTP would present an unreasonable risk to him or the public given his longstanding and deep expertise in the building and fire safety industries and the fact that he will be undertaking certification work.
3. Nor am I satisfied that it outweighs the personal issues RWTP is facing. RWTP needs money and he needs the CERT III to continue to earn money as a certifier while his application is heard and determined. In this sense, the facts of the case are distinguishable from those in the recent Tribunal decision in Kaur v Australian Skills Quality Authority [2025] ARTA 491 where the Tribunal was satisfied the cancelled qualification was not required for the Applicant's continued employment in her current position.[28]
4. I am also persuaded that RWTP's health and well-being will be significantly adversely impacted if a stay is not granted. Further, there is a risk that RWTP, who is already struggling to represent himself in these proceedings and suffers from PTSD may find it personally difficult to continue with the case or to represent himself effectively while also struggling to remain financial. There are material adverse financial consequences for RWTP and his wife if the stay were not granted given his inability to work in his chosen field and his understandable reluctance at his age to be forced back into highly physical labour at the age of 72.
5. In the circumstances, I am persuaded those personal factors outweigh the adverse consequences I have identified for the Respondent and that in the circumstances of the case it is desirable to grant the stay.
6. My decision to grant the stay is reinforced by the knowledge that it will be for a relatively short period because the parties have already agreed to a final hearing by the end of March 2026 (in 8 weeks' time). I have also decided that any risks can be further reduced by placing a condition on the stay which means RWTP cannot undertake paid physical carpentry work while this application is heard and determined.
7. Accordingly, the Application for a stay of the operation of the decision under s 32 Tribunal Act is granted pending the hearing and determination of the application, subject to the condition that RWTP not undertake paid physical work as a carpenter for that period.
8. The Tribunal will otherwise circulate draft case management directions and listing notices to the parties regarding the future conduct of the proceeding.

[1] T6. The Respondent disputes the start date and says its records show RWTP only enrolled on 14 February 2024.

[2] National Vocational Education and Training Regulator Act 2011 (Cth) (NVR) Act s 56.

[6] Explanatory Memorandum to the Administrative Review Tribunal Bill 2023 (Cth) [339].

[8] [2009] AATA 798 at [4].

[11] Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 [115] per Flick and Perry JJ; see also the Tribunal's observations in Jonah and Commissioner, NDIS Quality and Safeguards Commission (Practice and procedure) [2025] ARTA 2582 with reference to Oaklands and Australian Securities and Investments Commission [2011] AATA 199 and Stephan-Miller and National Disability Insurance Agency (Practice and procedure) [2025] ARTA 43. Barkly International College Pty Ltd and Australian Skills Quality Authority (Practice and Procedure) [2025] ARTA 242 [33] not followed.

[12] Poivedin and Australian Securities and Investments Commission [2018] AATA 124 [39]-[40].

[17] Annexures to the Respondent's submissions.

[21] Birdseye v Tax Practitioners Board [202] FCA 1235.

[22] The Respondent referred the Tribunal to Commonwealth of Australia v Restar [2016] FCA 657; Commonwealth of Australia v Jones [2018] FCA 1008 [16] and [54] and Commonwealth of Australia v Wright Solution Qld Pty Ltd [2018] FCA 1575.

[24] [2018] FCA 2097 [17] per Bromwich J. See also the Tribunal's recent decision in Mulcahy & Co Accounting Services Pty Ltd and Tax Practitioners Board [2026] ARTA 2 [63]; Kaur v Australian Skills Quality Authority [2025] ARTA 491.

[25] Birdseye v Tax Practitioners Board [2020] AATA 1250 [109]; [2020] AATA 1250; (2020) 82 AAR 241.