CZO v Secretary, Department of Education

NCAT Administrative and Equal Opportunity|2017-05-02|Before: Dr J

Solicitors: J Shang (Applicant) NSW Crown Solicitor's Office (Respondent) File Number(s): 2017/00085483 and 2017/00127216

REASONS FOR DECISION

The applicant company applied to the Tribunal to review the respondent's decisions to suspend, then to cancel, its provider approval. The provider approval authorised it to operate an approved education and care service.
The respondent sought an interim order prohibiting the applicant from providing an education and care service. The respondent claimed that the applicant was continuing to provide an education and care service, despite the respondent's cancellation of its provider approval.
I found that the Tribunal does not have power to make the order sought and dismissed the respondent's application.

Does the ADR Act or the NCAT Act apply?

The respondent submits that an application under the National Law for review of a reviewable decision is a proceeding which falls within the Tribunal's general jurisdiction under s 29 of the NCAT Act.
The principal factor in favour of this construction of the legislation is that s 9(1) of the ADR Act provides that the Tribunal has administrative review jurisdiction where "enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision (or class of decisions) made by the administrator." It is not in dispute that the National Law and the Children (Education and Care Services National Law Application) Act 2010 (NSW), being the enabling legislation, does not make any such provision. Although the legislation provides for the Tribunal to review a decision made under the National Law (National Law, s 193; Children (Education and Care Services National Law Application) Act 2010, s 8(b)), it does not provide that the administrative review is to be under the ADR Act.
The interpretation advanced by the respondent has much to commend it and I would be inclined to adopt it were it not for the circumstance that the Tribunal has found in other proceedings that it is exercising its administrative review functions when reviewing a decision under the National Law (see, for example, CVM v New South Wales Department of Education, Early Childhood Education & Care Directorate [2017] NSWCATAD 108 at [22]).
The Tribunal generally does not depart from its previous decisions for reasons of comity, unless it considers that they are clearly wrong or a new argument of substance has been raised which was not raised in the earlier proceedings. Here, the respondent has not made submissions about whether the earlier decisions were clearly wrong or whether new arguments are being raised now.
As it is possible to determine this application on the basis that either s 43 of the NCAT Act or s 60 of the ADR Act applies, and as it has to be determined urgently, I have not decided whether the respondent's submission that the Tribunal is exercising its general jurisdiction is correct. The respondent conceded that there was no relevant difference between those provisions in their application in this case.

Does the Tribunal have power to make the order sought by the respondent?

Section 43 of the NCAT Act, on which the respondent relies, and which would apply if the Tribunal is exercising general jurisdiction, provides as follows: 43 Effect of pending general applications and appeals (1) This section applies to the making or lodgement of any of the following (a pending general application or appeal): (a) a general application for the review or other re-examination of a decision made by an external decision-maker, (b) an external appeal, (c) an internal appeal. Note. See Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 for the effect of pending administrative review applications on administratively reviewable decisions and the making of orders staying or otherwise affecting such decisions. (2) A pending general application or appeal does not affect the operation of the decision to which the application or appeal relates, or prevent the taking of action to implement the decision, unless the Tribunal makes an order staying or otherwise affecting the operation of the decision. (3) The Tribunal may make such orders (whether with or without conditions) staying or otherwise affecting the operation of a decision to which a pending general application or appeal relates as it considers appropriate to secure the effectiveness of the determination of the application or appeal.
Section 60 of the ADR Act (which would apply if the Tribunal were exercising administrative review jurisdiction) provides: 60 Operation and implementation of decisions pending applications for administrative review (1) Subject to this section, an application to the Tribunal for an administrative review under this Act of an administratively reviewable decision does not affect the operation of the decision under review or prevent the taking of action to implement that decision. (2) On the application of any party to proceedings for an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application. (3) The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account: (a) the interests of any persons who may be affected by the determination of the application, and (b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and (c) the public interest. (4) While an order is in force under this section (including an order that has previously been varied on one or more occasions under this subsection), the Tribunal may, on application by a party to the proceedings, vary or revoke the order by another order.
The respondent submits that the Tribunal has power to make the order it seeks under s 43(3) of the NCAT Act (the equivalent of s 60(2) of the ADR Act). The respondent says that it is an order "otherwise affecting the operation of the decision" to which the review relates and that it is appropriate to make the order "to secure the effectiveness of the determination of the application".

Otherwise affecting the operation of the decision

Mr Lenehan, for the respondent, submitted that the words "otherwise affecting the operation of the decision" were to be construed broadly. He relied upon a number of authorities including AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81. He noted Basten JA's comment at [18] of that decision that it was arguable that s 60 of what is now the ADR Act "would allow the Tribunal to suspend the operation of a revocation of a licence, or reinstate the licence on a temporary basis."
Mr Lenehan also drew the Tribunal's attention to the decision of Jay v Commissioner for Fair Trading [2014] NSWCATAD 180 in which Hennessy DP referred to AVS (at [5]) and noted that the power in s 60 of the ADR Act is "wide enough to enable the Tribunal temporarily to reinstate a licence that has been revoked."
Whilst I accept that the words "otherwise affecting the operation of the decision" are of broad import, I am not persuaded that the order sought by the respondent, requiring the applicant not to provide any education and care service, is an order "otherwise affecting the operation of the decision" under review. The suspension and cancellation decisions take effect by operation of the National Law. An order affecting the "operation" of a decision has been interpreted, in the case law, to mean an order affecting its legal operation, so that a stay may be granted with the effect, for example, that a suspension decision does not continue to have any legal operation.
The order sought by the respondent is more in the nature of an order affecting the implementation or enforcement of the decisions under review. Section 60(1) of the ADR Act and s 43(2) of the NCAT Act provide that an application to the Tribunal for review does not "prevent the taking of action to implement [the] decision [under review]." This phrase is used in contradistinction to the phrase "the operation of the decision". In my view, on the proper construction of the legislation, the word "operation" is concerned with the decision's legal effect, not with its implementation.
However, in case I am wrong, I have considered the second part of the respondent's argument.

Secure the effectiveness of the determination

As for the expression "secure the effectiveness of the determination," Mr Lenehan referred to Campbell JA's comments in AVS at [129]. He said that the public interest could be considered when determining whether the order would secure the effectiveness of the determination, and that the public (being children) could suffer "irreparable harm" if the order were not granted (see Jay at [7] point 3). He said that they were the "relevantly affected interest".
Mr Lenehan also referred to Wieckowski v Commissioner for Fair Trading & Anor [2016 NSWCATAD 254 at [11] as authority for the proposition that, when considering restoring the status quo, the status quo is to be approached in a broad and flexible way.
I accept that it is relevant to consider whether a party would suffer irreparable harm if the order were not made, when considering whether an order would secure the effectiveness of the determination. However, the test is in the words of the statute. What is relevant is, in Campbell JA's words in AVS at [129], whether the review would be deprived of a "practical point" or whether the effectiveness of the ultimate determination by the Tribunal would be compromised if the order were not made.
Here, the order sought would have no effect (or no effect identified by the respondent) upon the ultimate orders made by the Tribunal. The orders sought would have an effect on the implementation or enforcement of the decision made by the respondent. However, the Tribunal's decision, if it were to affirm the cancellation and/or the suspension decision, would not be less effective in the absence of the Tribunal having made the orders sought by the respondent.
Whilst it is not necessary for me to decide this, in light of my findings above, I also doubt that the orders sought would preserve the status quo, in that the status quo before the suspension decision (at least) and, on the respondent's evidence, before the cancellation decision, was that the applicant was providing an education and care service.
For these reasons, I dismiss the respondent's applications for orders under s43 of the NCAT Act or s60 of the ADR Act.

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: 23 June 2017

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