CYU v Secretary, Department of Education

BACKGROUND

1. The applicant company applied for provider approval under s 10(1) of the National Law.
2. A delegate or agent of the Secretary emailed the applicant stating that: "As part of our approval process, any person intending to establish a family day care service in NSW is required to attend an information seminar and assessment session. All persons who will be in management or control (including all company officeholders, members of partnerships or executives of incorporated entities) are required to attend."
3. The email then informed the applicant of the time and date of its "assigned seminar and assessment." The email also stated: "There will be a compulsory assessment session, following the seminar, in which you will be given two scenarios which you will need to complete to assess your understanding of the responsibilities of a provider of a family day care service under the National Law. You will not be granted an approval unless all persons with management or control are assessed as satisfactory on these tasks."
4. The email identified Mr M as an individual who had applied to be a person with management or control, and who was required to attend the seminar and assessment session.
5. The email finished by advising the applicant that a fee of $100 per person was payable for attendance.
6. On the day before the "rsvps" were due for the family day care seminar and assessment, the Department emailed the applicant again, reminding it to rsvp and stating: "Please note, failure to attend the session without a valid reason will result in your application being invalidated."
7. Mr M attended the family day care seminar and assessment session. The assessment questions required Mr M to consider hypothetical scenarios occurring in relation to family day care educators or children in family day care, and to respond to questions with reference to the National Law or National Regulations. They required Mr M both to apply the law and to identify correct provisions of the law.
8. A delegate of the Secretary refused the applicant's application for a provider approval under s 15(1)(b) of the National Law because of a lack of satisfaction that its director, Mr M, was a fit and proper person to be involved in the provision of an education and care service (see National Law, s 15(2) and s 12(2)(a)). The reason the delegate formed this view was that the responses to the questions Mr M answered in the assessment "failed to identify critical elements of the National Law and National Regulations, and did not demonstrate an understanding of the role and responsibilities of an approved provider in the day to day operation of an education and care service."
9. The applicant sought internal review of that decision under s 191(1) of the National Law. The internal reviewer confirmed the decision to refuse the applicant's application on the same grounds.
10. The applicant then applied to the Tribunal, under s 192(a) of the National Law, for review of the internal review decision. I am satisfied that the Tribunal has jurisdiction to review this decision under s 193 of the National Law (see Children (Education and Care Services National Law Application) Act 2010 (NSW), s 8(b)).

NATURE OF TRIBUNAL'S JURISDICTION

1. The Secretary submitted that the Tribunal was required to determine the preliminary issue of the basis on which it exercises jurisdiction in these proceedings. In a number of decisions, the Tribunal had determined that reviews of the Secretary's decisions under the National Law fell within its administrative review jurisdiction under s 9 of the Administrative Decisions Review Act 1997 (NSW) and s 30 of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act"): see, for example, CTG v NSW Department of Education [2017] NSWCATAD 60 at [14]-[20] and CVM v NSW Department of Education [2017] NSWCATAD 108.
2. The Secretary submitted that the Tribunal's jurisdiction was not "administrative review jurisdiction" because s 9 of the Administrative Decisions Review Act creates administrative review jurisdiction only where enabling legislation provides that applications may be made to the Tribunal for an administrative review of decisions under that Act. The National Law does not so provide, and nor does the Children (Education and Care Services National Law Application) Act.
3. I accept, as the respondent submits, that the Tribunal's jurisdiction to review decisions under the National Law falls within the Tribunal's general jurisdiction under s 29 of the NCAT Act. This is because I accept that the Tribunal's jurisdiction is not "administrative review jurisdiction" for the reasons given by the respondent; and it therefore falls within the Tribunal's residual, general jurisdiction.
4. I note that Senior Member Ransome considered this issue and came to the same conclusion as that I have come to in a case handed down after the hearing in this matter, DBU v Secretary, Department of Education [2017] NSWCATAD 257. I respectfully adopt her reasoning and the comments she makes in that decision at [8] to [26].

WAS THE EVIDENCE ON WHICH THE SECRETARY RELIES ILLEGALLY OR IMPROPERLY OBTAINED?

1. The Tribunal raised the issue, during the hearing, of whether the Secretary had power to require Mr M to undergo an assessment and thus to obtain the assessment results. The respondent submitted that the Secretary did have such power but that, in any event, it was not the Tribunal's role, in a review of a decision under the National Law, to enquire into this issue. I informed the parties that if I decided that it was necessary to explore this issue I would invite them to provide submissions about it, after the hearing.
2. After the hearing, I decided that it was necessary to consider whether the assessment results were unlawfully or improperly obtained, because this was the only evidence upon which the Secretary relied in support of the contention that the application for a provider approval should be refused. I formed the view that it was important to decide, first, whether the evidence was unlawfully or improperly obtained and, if it was, to consider secondly whether I should have regard to it. Accordingly, I invited the parties to make submissions about the issue, which they both did.
3. The Secretary submitted that a power to require applicants or their officers to attend a compulsory seminar and assessment may be derived from ss 12-14 and 261 of the National Law.
4. Subsections 12(1) and (2) of the National Law provide: 12 Applicant must be fit and proper person (1) An applicant who is an individual must satisfy the Regulatory Authority that the applicant is a fit and proper person to be involved in the provision of an education and care service. (2) If the applicant is not an individual, the applicant must satisfy the Regulatory Authority that - (a) each person who will be a person with management or control of an education and care service to be operated by the applicant is a fit and proper person to be involved in the provision of an education and care service; and (b) the applicant is a fit and proper person to be involved in the provision of an education and care service.
5. Subsections 13(1) and (3) of the National Law provide: 13 Matters to be taken into account in assessing whether fit and proper person (1) In determining whether a person is a fit and proper person under this Division, the Regulatory Authority must have regard to - (a) the person's history of compliance with - (i) this Law as applying in any participating jurisdiction; and (ii) a former education and care services law of a participating jurisdiction; and (iii) a children's services law of a participating jurisdiction; and (iv) an education law of a participating jurisdiction; and Note. If a person has been served with an infringement notice for an offence under this Law, and the person has paid the penalty, the Regulatory Authority cannot consider that conduct when determining whether the person is fit and proper. See section 291(5). (b) any decision under a former education and care services law, a children's services law or an education law of a participating jurisdiction to refuse, refuse to renew, suspend or cancel a licence, approval, registration or certification or other authorisation granted to the person under that law; and (c) either - (i) any prescribed matters relating to the criminal history of the person to the extent that history may affect the person's suitability for the role of provider of an education and care service; or (ii) any check of the person under a working with vulnerable people law of a participating jurisdiction; and (d) whether the person is bankrupt, or has applied to take the benefit of any law for the relief of bankrupt or insolvent debtors or, in the case of a body corporate, is insolvent under administration or an externally-administered body corporate. ... (3) Nothing in subsection (1) or (2) limits the circumstances in which a person may be considered not to be a fit and proper person to be involved in the provision of an education and care service.
6. Subsection 14(1) of the National Law provides: 14 Regulatory Authority may seek further information (1) For the purpose of carrying out an assessment as to whether a person is a fit and proper person, the Regulatory Authority may - (a) ask the person to provide further information; and (b) undertake inquiries in relation to the person.
7. Section 261 of the National Law relevantly provides: 261 Powers of Regulatory Authority (1) The Regulatory Authority has the power to do all things that are necessary or convenient to be done for, or in connection with, or that are incidental to the carrying out of its functions under this Law. (2) Without limiting subsection (1), the Regulatory Authority has the following powers under this Law in relation to this jurisdiction - … (e) to collect, waive, reduce, defer and refund fees (including late payment fees) and enter into agreements in relation to fees; … (g) to exercise any other powers conferred on it by this Law.
8. The respondent submitted that an assessment is a form of inquiry, for the purposes of s 14(1)(b) and that it may also be described as a means of requiring that a person provide further information, being information about their level of knowledge of the statutory scheme, pursuant to s 14(1)(a). The respondent submitted that this construction is supported by the context in which s 14 appears, that it would promote the purpose of the Act and that it should, for that reason, be preferred. The respondent submits that s 14 should be read broadly to permit the determination under s 12 to be carried out having regard to the full range of information that may be taken into account. The respondent says further that, because knowledge of the statutory scheme is a fundamental issue in the application of the test under s 12, the Act should be construed in a way that permits the Secretary to determine each applicant's knowledge.
9. I find that conducting an assessment is not authorised by s 14(1)(b), which authorises the Secretary to "undertake inquiries in relation to" a person. A power to undertake inquiries encompasses a power to ask others about a person, or to investigate that person through undertaking research. It does not extend to requiring a person to undergo an assessment. Nor is requiring a person to undergo an assessment "ask[ing] the person to provide further information" within s 14(1)(a). Mr M was not asked for information. Rather, he was required to undertake an assessment successfully as a condition of the applicant being granted a provider approval. In my view, s 14(1)(a) contemplates the regulator asking a person to provide information relevant to the application, not requiring a person to submit to a form of testing or assessment.
10. A construction of s 14 requiring a person to complete an assessment may, as the respondent submits, promote the purpose of the Act. An "interpretation that will best achieve the purpose or object of [the National] Law is to be preferred to any other interpretation" pursuant to cl 7 of Sch 1 to the National Law. However, the interpretation must be open before it may be adopted. As Hayne, Heydon, Crennan and Kiefel JJ said in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 ("Alcan") at 46 [47], "the task of statutory construction must begin with a consideration of the text itself." Whilst "the ordinary and grammatical sense of the statutory words" is "to be interpreted having regard to their context and the legislative purpose" (Alcan, French CJ at 31 [4]), the "language which has actually been employed in the text of legislation is the surest guide to legislative intention" (Alcan, Hayne, Heydon, Crennan and Kiefel JJ at 47 [47]). The language which has been employed in the text of s 14 indicates, in my view, that the legislature did not intend the Regulatory Authority to have the power to require applicants, or individuals associated with applicants, to undergo assessments or tests.
11. The respondent submits that the power to run an assessment may be derived from s 261 of the National Law, the relevant provisions of which are set out above. The respondent says that the operation of an assessment must be taken to be a function that is necessary and convenient for the carrying out of the function of determining whether to grant a provider approval, and also that it is a function incidental to that determination. The respondent relies upon a passage in Hird v Chief Executive Officer of Australian Sports Anti-Doping Authority (2015) 227 FCR 95; [2015] FCAFC 7 in which the Full Federal Court (Kenny, Besanko and White JJ) considered another provision giving a public authority power to do all things necessary or convenient to be done for or in connection with the performance of certain functions. In that case, the Court said at 157 [210] that "[w]here, as here, the legislature confers a function in general terms, a grant of power in the terms of [the relevant provision] will, generally speaking, have a commensurably wide scope."
12. I am not satisfied that s 261 provides a power to require applicants and their officers to undergo an assessment. A power of that nature is coercive, and it would be expected that specific provision would be made for such a power. Whilst s 261 of the National Law undoubtedly has a wide scope, it is to "be interpreted in light of the functions that the Parliament has conferred on the body in question"; that is, the respondent (Hird v Chief Executive Officer of Australian Sports Anti-Doping Authority (2015) 227 FCR 95; [2015] FCAFC 7 at 157 [210]). The relevant function of the respondent is assessing an application for provider approval. There is nothing in the legislation which suggests that the legislature intended the respondent to have coercive powers when conducting such an assessment. The language of s 12(1) and (2) ("applicant … must satisfy") indicates that the onus is on the applicant to persuade the regulator that the applicant is a fit and proper person. The respondent's role is relatively passive. Section 14 gives the respondent power to seek further information, and so to take a more active role (it is headed "Regulatory Authority may seek further information") but there is no indication that It has any coercive powers in relation to obtaining such information.
13. I also find that the Secretary does not have power to impose a fee in respect of the assessment. The respondent says it has such a power pursuant to s 261(2)(e). Even if I am wrong about the respondent's power to conduct an assessment, I do not accept that s 261(2)(e) would authorise the respondent to impose a fee for doing so. The word "collect" in s 261(2)(e) refers to the collection of fees in circumstances where there is a specific conferral of legislative power to impose the fee. Fees imposed under the National Law include application fees for provider and service approval under ss 11(d) and 44(1)(e). Pursuant to s 261(2)(e) of the National Law, the respondent may collect, waive, reduce, defer and refund such fees.
14. It follows from the above that I am of the view that the evidence of Mr M's assessment results was unlawfully obtained by the respondent. At the very least, it was improperly obtained. This then raises the issue of whether the evidence should be admitted and, if so, what weight should be given to it.

WHAT PRINCIPLES APPLY TO THE EXCLUSION OF EVIDENCE?

1. The respondent concedes that the Tribunal has a discretion to exclude evidence of the assessment if the Tribunal concludes that obtaining that evidence was beyond power. However, the respondent says that the discretion should be exercised having primary regard to the relevance of the evidence, and ought not be exercised in this case.
2. The Tribunal's power to admit or exclude evidence is derived from s 38(2) of the NCAT Act. That subsection provides: (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
3. The respondent submitted (and I accept) that, although the Tribunal is not bound by the rules of evidence, those rules may nevertheless guide the Tribunal. The respondent referred to s138 of the Evidence Act 1995 (NSW), "Exclusion of improperly or illegally obtained evidence," and submitted that the assessment results would be admissible under s 138, even if that evidence was improperly obtained.
4. I am not persuaded that the rules of evidence, under the Evidence Act, are the rules to which the Tribunal should first turn. The Evidence Act applies, on its terms, "to all proceedings in a NSW court" (s 4(1)), and it defines "NSW court" to mean the Supreme Court, or any other court created by Parliament, and to include "any person or body (other than a court) that, in exercising a function under the law of the State, is required to apply the laws of evidence" (s 3(1), Dictionary). The Tribunal is not required to apply those "laws of evidence", except when exercising certain functions which are not presently relevant (NCAT Act, s 38(3)). Thus, the Tribunal is not a "NSW court" for the purposes of the Evidence Act except, possibly, when exercising certain functions which is it is not currently exercising.
5. The "rules of evidence" to which s 38(2) refers are, in my view, the common law rules of evidence. Those are the rules which do not bind the Tribunal but which the Tribunal may, in its discretion, apply, should it choose to do so.
6. In Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555; [2014] FCAFC 93, the Full Federal Court considered the effect of s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth), which provided that the Administrative Appeals Tribunal ("AAT") is "not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate". Flick and Perry JJ referred to and quoted from an AAT decision about the scope of s 33(1)(c), with apparent approval (at 578-579 [91]): Sections 2A, 33 and 39 are to be read and applied in context. Section 33(1)(a), (b) and (c), in particular, are to be read together and subject to the requirement to ensure that a party has a "reasonable opportunity" to present his or her case: s 39. "Understood in that context", it has been said, "s 33(1)(c) is not a grant of power occasionally to depart from the strict application of the rules of evidence; rather it presupposes and establishes a scheme for the Tribunal to inform itself of relevant matters in which, notwithstanding that the procedure of the Tribunal always remains within the Tribunal's independent control, … the Tribunal, subject to the rules of natural justice, properly may rely on any probative materials relevant to its function": Re Tarrant and Australian Securities and Investments Commission (2013) 62 AAR 192 at [75] per Kerr J and Sen Mem Redfern. The Tribunal members there went on to observe that the power conferred by s 33(1)(a) would be sufficient to give a direction that even probative material may be excluded from the Tribunal's consideration: 62 AAR 192 at [77].
7. Their Honours continued (at 579-580 [93]-[94] and [96]) 93 But questions have been repeatedly raised to as whether the reasons standing behind the common law rules of evidence may guide an administrative tribunal in the procedure which best facilitates the discharge of its statutory functions. In many instances, the common law rules of evidence are founded upon principles of common sense, reliability and fairness. 94 So much has long been recognised…. 96 Even in the absence of a statutory provision such as s 33(1)(c), the common law rules of evidence, it has long been recognised, may for historical reasons exclude material which could assist in an administrative fact-finding task.
8. Their Honours concluded: The Tribunal was not "bound by the rules of evidence". But it was bound in carrying out its review function to proceed in a manner which was "fair just, economical, informal and quick" and was further bound to ensure that Mr Sullivan was given "a reasonable opportunity to present his … case" (Administrative Appeals Tribunal Act, s 39). Subject to those requirements, the procedure of the Tribunal was within its own discretion.
9. It is clear from Sullivan's case that all judges considered that, if the AAT were to apply the rules of evidence, those rules would be the common law rules of evidence.
10. It may be that the Tribunal's power to inform itself on any matter in such manner as it thinks fit allows it to apply the provisions of the Evidence Act. It is not necessary to determine that question in this case. However, in circumstances where the legislature has provided for the Evidence Act to apply to specified courts which relevantly do not include the Tribunal, the common law rules of evidence appear to me to have more direct relevance.
11. There has been some uncertainty at common law as to whether the discretion to exclude illegally or improperly obtained evidence in criminal cases extends to the civil law. However, the weight of authority favours the view that it does.
12. In Pearce v Button (1985) 60 ALR 537, Pincus J said at 551-552: Both the Australian work just referred to, and some American cases, throw doubt upon the universality of the proposition that a civil court cannot exclude relevant evidence on the ground that it was improperly obtained. To take an extreme example, it is difficult to believe that in civil proceedings there could be no discretion to exclude, on policy grounds, admissions obtained by violence or threats of violence. If the Customs officers had extracted the documents from Mr Pearce by threatening to shoot him, one cannot see any real likelihood of the documents being admitted. That is, despite the apparent lack of authority in England or Australia supporting its existence, there must surely be a discretion even in civil cases to exclude such evidence on policy grounds.
13. His Honour concluded, at 556: "[t]here is a discretion even in civil proceedings to admit, or to exclude, evidence illegally obtained by purported use of provisions of the Customs Act."
14. In Southern Equities Corp Ltd (in liq) v Bond (2001) 78 SASR 554; [2001] SASC 70, Lander J said, considering the question, at 567 [94]: "In principle I can see no reason why the evidence which has been improperly or illegally obtained cannot in the exercise of the Court's discretion be excluded in civil proceedings". After reviewing the authorities, his Honour continued at [109]: "I am inclined to the view that the Bunning v Cross discretion is available to the court in civil proceedings for the very reason it exists in criminal proceedings and that is to protect the administration of justice." In Bunning v Cross (1978) 141 CLR 54, the High Court recognised a discretion to exclude evidence which was illegally or improperly obtained in criminal cases.
15. In a case decided by the Victorian Civil and Administrative Tribunal, Re Hughes and Legal Services Board [2008] VCAT 2654, Judge Ross, Vice President, considered (at 97 [52]) that it was appropriate "to have regard to the exclusionary rules concerning illegally or improperly obtained evidence as a guide to the exercise of the tribunal's discretion to accept or exclude evidence."
16. In Phoenix Eagle Company Pty Ltd v Tom McArthur Pty Ltd [2017] WASC 130 at [60], a civil proceeding, Allanson J considered, on the basis of common law principles, that "the court may, in its discretion, exclude evidence obtained illegally, at least where there has been a serious and deliberate infringement of legal rights".
17. These cases support the proposition that I may have regard to the exclusionary rules concerning illegally or improperly obtained evidence as a guide to the exercise of my discretion to accept or exclude evidence.
18. It is also relevant to note the remarks of Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 282, in a passage quoted by Flick and Perry JJ in Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555; [2014] FCAFC 93 at 571 [61]: Submissions were made at the hearing of the appeal as to the correct decision-making process which it would have been permissible for the delegates to adopt. These submissions were misguided. They draw too closely upon analogies in the conduct and determination of civil litigation. Where facts are in dispute in civil litigation conducted under common law procedures, the court has to decide where, on the balance of probabilities, the truth lies as between the evidence the parties to the litigation have thought it in their respective interests to adduce at the trial. Administrative decision-making is of a different nature. A whole range of possible approaches to decision-making in the particular circumstances of the case may be correct in the sense that their adoption by a delegate would not be an error of law. The term "balance of probabilities" played a major part in those submissions, presumably as a result of the Full Court's decision. As with the term "evidence" as used to describe the material before the delegates, it seems to be borrowed from the universe of discourse which has civil litigation as its subject. The present context of administrative decision-making is very different and the use of such terms provides little assistance.
19. The conceptual differences between civil litigation and administrative review mean that, whilst the common law rules concerning the exclusion of illegally or improperly obtained evidence provide guidance to the Tribunal, they are not determinative. Other considerations may apply. For example, it is relevant that the Tribunal "stands in the shoes" of the administrator. It is also relevant that the Tribunal is to make the correct or preferable decision (DBU v Secretary, Department of Education [2017] NSWCATAD 257 at [25]; Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 579), and that, at least on one view, "the overall objective of the merits review system" is "to ensure that all administrative decisions of government are correct and preferable" (Administrative Review Council, Better Decisions: Review of Commonwealth Merits Review Tribunals, Australian Government Publishing Service, 1995).

SHOULD THE EVIDENCE BE EXCLUDED?

1. There are competing policy considerations as to whether the evidence of the assessment results should be excluded.
2. On the one hand, the evidence is, as the respondent contends, relevant to the determination of the proceedings. It is relevant to the fitness and propriety of Mr M because a knowledge and understanding of the National Law and the Education and Care Services National Regulations (NSW) ("National Regulations") is part of what would make Mr M "fit" to "be involved in the provision of an education and care service" within s 14(2)(a) of the National Law. "Fitness" has three components, one of which is knowledge: Hughes & Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127 at 156-157. Compliance with the National Law is expressly made relevant to fitness and propriety (see s 13(1)(a)), and knowledge of the National Law facilitates such compliance.
3. The objectives of the national education and care services quality framework, which is established by the National Law, include "to ensure the safety, health and wellbeing of children attending education and care services," "to improve the educational and developmental outcomes for children attending education and care services" and "to promote continuous improvement in the provision of quality education and care services" (National Law, s 3(1) and (2)(a) to (c)). Clearly, these objectives are promoted in circumstances where persons with management or control of an education and care service have knowledge and understanding of the National Law and National Regulations.
4. The guiding principles of the National Law include the principle "that the rights and best interests of the child are paramount" and the principle "that best practice is expected in the provision of education and care services" (National Law, s 3(3)(a) and (f)). An "entity that has functions under [the National] Law is to exercise its functions having regard to the objectives and guiding principles of the national education and care services quality framework" (National Law, s 4). It is unclear whether the Tribunal is an "entity" as that term is used in s 4. Even if it is not, it stands in the shoes of the Secretary or "Regulatory Authority" which presumably is such an entity. I note that, in CTZ v NSW Department of Education, Early Childhood Education and Care Directorate [2017] NSWCATAD 132 at [56], Senior Member Anderson observed that "the Tribunal is required to regard the rights and best interests of the child as paramount in making a determination as to the correct and preferable decision." I accept that this is the case.
5. Ms Shellye Hanson, the Director, Statewide Operations Network in the Early Childhood Education Directorate in the Department of Education, has given evidence, which I accept, about the conduct of assessments. Her evidence is that applicants are given two scenario problems, each requiring that the applicant identify six relevant provisions of the National Law or National Regulations and answer two or three written questions. The questions require the applicant to identify what actions they would take in response to the scenario, what their obligations would be as an approved provider dealing with the scenario and what requirements of the National Law and the National Regulations they would consider. The scenarios are adapted from scenarios developed by the Victorian Regulatory Authority.
6. Applicants are given one hour to complete the two scenario questions under exam conditions. They may use printed copies of the National Law and the National Regulations but may not refer to any other material. The assessments are independently marked by two Senior Field Officers employed by the Department of Education. Each marker determines whether the answers given in respect of each scenario are adequate or inadequate.
7. Mr M's assessment task was marked as "inadequate" for both scenarios by both markers. The markers' reasons why Mr M's response to the first scenario was inadequate included that he failed to identify key aspects when addressing the scenario and made no reference to procedures in relation to child protection. The reasons why Mr M's response to the second scenario was marked as inadequate included that he failed to identify key aspects when addressing the scenario such as how he would ensure the safety, health and wellbeing of children and the steps he would take to protect children from harm (with reference to the offence in s 167 of the National Law). It was also noted that there was no reference to an assessment to identify if the educator and other adult members of the residence were fit and proper.
8. The applicant submitted that the assessment was problematic for a number of reasons. Mr M was asked to identify particular sections and regulations when he did not know what a section or regulation was and had no legal background. He ran out of time and in real life a service would have more resources available and more time to deal with issues arising. If he were presented with the scenarios in the real world, he would be able to access policies and procedures (which the National Law and National Regulations require approved providers to have in place). It would also be possible to contact the Department to ask advice. He also disagreed with the way he was marked; for example, in response to a scenario in which a child was found by a parent to have deep scratches, he said he did not assume that the scratches had taken place at the educator's home, since the scenario does not explicitly state that this occurred.
9. Some of the concerns raised by Mr M have some substance. The assessment assumes that a person who is fit to be involved in the management or control of an education and care service will be able to demonstrate that fitness in writing, under time conditions, and without references to resources which would be available in the "real world". That is not necessarily the case. The requirement that the individual doing the test identify particular "sections" and "regulations" could be confusing to someone without legal training. What Mr M generally did was to identify Parts or Divisions of the National Regulations, such as Division 10 of Part 4.4 - Register of Family Day Care Educators, and only sometimes to identify particular provisions. The markers appeared to give him some latitude in this respect. Further, I accept the evidence of Ms Hanson that approved providers may have very little time in the "real world" to respond to a scenario.
10. Notwithstanding the concerns raised by the applicant, I also accept that the markers are experienced in investigating complaints and incidents, conducting compliance inspections and assessing and rating education and care services, as Ms Hanson attests. Their views are to be given some weight. Further, it is concerning that Mr M failed to identify certain issues in response to the scenarios affecting the safety of children, such as how he would ensure the safety, health and wellbeing of children and the steps he would take to protect children from harm. Mr M's responses were not wholly inadequate; they did identify some appropriate actions to be taken. However, he referred to many provisions which were not relevant to the scenarios, and failed to refer to some provisions of critical relevance, factors tending to show that he did not have an adequate understanding of the provisions of the National Law or National Regulations.
11. On balance, I am satisfied that, notwithstanding its limitations, the assessment indicated that Mr M's knowledge and understanding of the National Law and National Regulations was deficient. I come to this conclusion taking into account the circumstance that the National Law is a law calling for strict compliance by those who are required to apply it: CTG v NSW Department of Education, Early Childhood and Care Directorate [2017] NSWCATAD 60 at [45] and 3 Angels Family Day Care Pty Ltd v Secretary, Department of Education [2017] NSWCATAD 265 at [22], citing Long Life Family Daycare v Director General Education Directorate [2016] ACAT 69.
12. The public policy in admitting the evidence of Mr M's assessment is that it would promote the objectives and the guiding principles of the national education and care services quality framework, including by helping to ensure the safety, health and wellbeing of children attending education and care services.
13. On the other hand, there is a public policy in favour of excluding evidence which was improperly and unlawfully obtained. The Bunning v Cross discretion has been erected to protect the administration of justice: Southern Equities Corp Ltd (in liq) v Bond (2001) 78 SASR 554; [2001] SASC 70, Lander J at 565 [75]. An "object of the exercise of the discretion is to discourage illegal or improper conduct by the law enforcement authorities": Southern Equities Corp Ltd (in liq) v Bond (2001) 78 SASR 554; [2001] SASC 70, Lander J at 565 [75], citing Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281 at 288. This principle would extend to illegal or improper conduct by regulators.
14. In this case, the evidence indicates that the regulator (that is, the respondent) is routinely and systematically requiring applicants for provider approvals and persons managing or controlling education and care services to be operated by applicants, to attend and pay for seminars and assessment sessions, before processing their applications. The respondent's submissions state that "the respondent's policy is to require applicants for provider approval to undertake a compulsory assessment of their knowledge and understanding of the National Law and the Regulation." The Secretary has, as I have found, no authority to do so.
15. It is also relevant that, although the knowledge of a person who will (or whom it is intended will) have management or control of an education and care service (see National Law, s 12(2)), is relevant to that person's fitness and propriety to be involved in the provision of an education and care service, this is not the focus of the provisions concerning fitness and propriety. The Secretary is required to have regard to certain matters when determining fitness and propriety (see s 13(1)), and is permitted to have regard to other specified matters (see s 13(2)). These do not include knowledge or understanding of the National Law. It is true, as the respondent points out, that the Secretary may have regard to such knowledge, because s 13(3) provides that nothing in s 13(1) or (2) limits the circumstances in which a person may be considered not to be a fit and proper person to be involved in the provision of an education and care service. Nevertheless, it is significant that knowledge is not one of the matters upon which s 13 focuses.
16. I do have some concerns about admitting the evidence given that the Tribunal is standing in the shoes of the administrator. To the extent that the Tribunal is, to some degree, modelling good administrative practice and good administrative decision-making, the admission of the evidence could be regarded as condoning, in a practical way, the unlawful assessment procedure established by the Secretary and Departmental staff. However, I am also conscious that the Secretary acts as a model litigant and may be expected to take seriously the Tribunal's view, expressed in this decision, about the lawfulness of the assessment process, when determining how to act in the future.
17. The respondent submits that, in applying the test under s 138(1) of the Evidence Act as to whether the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence has been obtained, I should have regard to certain matters. These are the probative value of the evidence (s 138(3)(a)), its importance in the proceedings (s 138(3)(b)) and the fact that the impropriety was neither deliberate nor reckless, but resulted from an arguable and reasonably-held construction of the National Law (s 138(3)(e)).
18. As indicated above, I am not inclined to apply s 138 of the Evidence Act, since it is not expressed to apply to the Tribunal. I regard common law principles of being of greater relevance in guiding my discretion. However, I accept that the factors outlined by the respondent are factors which would be relevant to the exercise of the discretion to exclude evidence at common law.
19. I accept that the evidence is important in the proceedings, as it is the only evidence that Mr M is not a fit and proper person to be involved in the provision of an education and care service and the only evidence relied upon to refuse to grant the provider approval. It is also probative evidence, subject to some qualifications to which I have referred above.
20. I do not think there is sufficient evidence to determine whether or not the impropriety on the part of the Secretary (or the Department) was reckless. Whilst the respondent's construction of the National Law was arguable, I also doubt that it was reasonably-held.
21. In determining whether to admit the evidence of Mr M's assessment responses and assessment results, I have given great weight to the guiding principles that the rights and best interests of the child are paramount and that best practice is expected in the provision of education and care services. In accordance with these principles, I find that the public policy considerations which favour admission of the evidence outweigh the public policy considerations against admitting it. This includes the public policy of protecting the applicant from unlawful and improper conduct (Southern Equities Corp Ltd (in liq) v Bond (2001) 78 SASR 554; [2001] SASC 70 at [113]). Whilst the unlawful conduct of the respondent is concerning, this is not a case where there has been "a serious and deliberate infringement of legal rights" to use the language of Phoenix Eagle Company Pty Ltd v Tom McArthur Pty Ltd [2017] WASC 130. Further, I anticipate that the administration of justice will be protected by the respondent seeking advice about the issues raised in this decision and taking appropriate action in respect of the procedures the Secretary adopts in the future.
22. I decide, for these reasons, not to exclude the evidence of Mr M's assessment responses and assessment results.

WHAT IS THE CORRECT OR PREFERABLE DECISION?

1. The applicant has not satisfied me that Mr M is a fit and proper person to be involved in the provision of an education and care service (within s 12(2)(a) of the National Law). This is because Mr M's assessment results indicate that he has a deficient knowledge and understanding of the National Law and National Regulations and is therefore not "fit" for such involvement. In these circumstances, I am required, by s 15(2) of the National Law, not to grant the applicant a provider approval.
2. The correct and preferable decision is therefore to confirm the respondent's decision.

ORDERS 1. Pursuant to s 193(3)(a) of the Children (Education and Care Services) National Law (NSW), the Tribunal confirms the respondent's decision of 26 October 2016 to refuse to grant the applicant a provider approval.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 September 2017