Globesat Pty Ltd v Secretary Department of Education

Other: G Kbar (Director) (Applicant) File Number(s): 2024/00242707 Publication restriction: (1) Pursuant to ss 64(1)(b) and 64(1)(c) of the Civil and Administrative Tribunal Act 2013, until further order of the Tribunal, the publication or reporting of the hearing of this application insofar as it relates to the content of the Confidential Documents is prohibited. (2) Pursuant to section 64(1)(c) of the Civil and Administrative Tribunal Act 2013 the publication of the contents of those documents under Tabs 2, 2.1, 10, 13, 13.1 and 13.2 in the bundle of documents referred to as "Confidential Bundle of Respondent's Relevant Documents" filed on 8 August 2024 (the Confidential Bundle) is prohibited. (3) Pursuant to section 64(1)(d) of the Civil and Administrative Tribunal Act 2013 the disclosure of the contents of those documents under Tabs 2, 2.1, 10, 13, 13.1 and 13.2 in the Confidential Bundle is restricted to the respondent, the respondent's legal representatives and the Tribunal.

Background and introduction

1. By an application filed on 2 July 2024, the applicant, Globesat Pty Ltd (Globesat) is seeking review of a decision made by the respondent, the Secretary, Department of Education, to refuse to grant provider approval to the applicant. The approval sought by the applicant is required in order that Globesat can operate a child-care centre under the Children (Education and Care Services) National Law NSW (National Law).
2. The applicant's director, Mr Ghassan Kbar, applied for provider approval on 17 January 2023. That application was refused by letter dated 11 May 2023 on the basis that it was considered that in a knowledge assessment undertaken on 30 March 2023, he had failed to identify critical elements of the National Law and of the Education and Care Services National Regulations 2011 (National Regulations) and thus failed to demonstrate a sufficient understanding of the roles and responsibilities of an approved provider in the day to day operation of an education and care service. He was advised in that letter that he could make a further application, or he could seek internal review of that decision.
3. On 7 August 2023, he made a further application for provider approval. After a risk assessment was conducted, he was invited to undertake a knowledge assessment which he completed on 12 October 2023. This application was also refused by letter dated 27 November 2023. He was advised that the respondent was not satisfied that he was a fit and proper person to be involved in the provision of education and care (referring to s 12 and s 15(1)(b) of the National Law) as the Department expects that each person with management or control of a child care centre has adequate knowledge and understanding of a provider's obligations under the National Law and Regulations. It was said to be of "concern that you are still not able to demonstrate sufficient knowledge of the National Law and Regulations after two attempts of sitting a knowledge assessment".
4. The applicant applied for internal review of the decision made on 27 November 2023 on 3 December 2023. By an internal review decision of 29 May 2024, the original decision was confirmed.

The Internal Review decision (IRD)

1. The reviewer noted that the applicant was registered as a company (Globesat) on 2 March 2021. The sole director, secretary and shareholder of Globesat is Mr Kbar. Thus he is the sole person with management or control as defined in s 5A of the National Law.
2. The reviewer noted that this was his second application: his first had been refused by decision made on 11 May 2023, after he was "unable to demonstrate a sufficient understanding of the National Law and National Regulations".
3. In support of the application under review he had provided ASIC details of the company, Globesat; identity documents; a national police certificate and a CV. The latter indicated that he held a PhD from UNSW in Computer Network and a Masters of Engineering Studies from the University of Sydney. The internal reviewer noted that his career has been in the information technology, engineering and cybersecurity industry in which context he has some management knowledge and experience. However, that background "does not offer any significant insight as to his capacity to operate an education and care service in compliance with the Applicable Laws [referring to the National law and Regulations]". Such experience is not a requirement to obtain a provider approval, but provides an indication of a person's "knowledge and capacity of operating an education and care service".
4. The key issue considered determinative by the review was the applicant's responses at the knowledge assessment session which were said to be of: significant probative value as they constitute the only evidence of how he would manage certain situations as an approved provider of an education and care service. Knowledge of the applicable laws is an important aspect of ensuring successful operation of a service and Mr Kbar was unable to satisfactorily articulate responses to the questions asked in relation to his knowledge of the applicable laws and their practical application relative to the role of an approved provider.
5. For that reason the reviewer was not satisfied that, from a knowledge perspective, the applicant was a fit and proper person to be involved in the provision of an education and care service.
6. The reviewer went on to set out aspects of the National Quality Framework (NQF), identifying the need to ensure the safety, health and well being of children, among other matters. It was noted that a decision as to whether to grant provider approval must be made with regard to the objectives of the NQF and the reviewer stated that the objectives of the NQF may not be upheld by granting the application for provider approval at this time.

The National Law

1. The key statutory framework is set out in the National Law. Section 3 sets out the objectives and guiding principles: 3 Objectives and guiding principles (1) The objective of this Law is to establish a national education and care services quality framework for the delivery of education and care services to children. (2) The objectives of the national education and care services quality framework are - (a) to ensure the safety, health and wellbeing of children attending education and care services; (b) to improve the educational and developmental outcomes for children attending education and care services; (c) to promote continuous improvement in the provision of quality education and care services; (d) to establish a system of national integration and shared responsibility between participating jurisdictions and the Commonwealth in the administration of the national education and care services quality framework; (e) to improve public knowledge, and access to information, about the quality of education and care services; (f) to reduce the regulatory and administrative burden for education and care services by enabling information to be shared between participating jurisdictions and the Commonwealth. (3) The guiding principles of the national education and care services quality framework are as follows - (a) that the rights and best interests of the child are paramount; (b) that children are successful, competent and capable learners; (c) that the principles of equity, inclusion and diversity underlie this Law; (d) that Australia's Aboriginal and Torres Strait Islander cultures are valued; (e) that the role of parents and families is respected and supported; (f) that best practice is expected in the provision of education and care services.
2. Section 4 of the National Law provides: 4 How functions to be exercised An entity that has functions under this Law is to exercise its functions having regard to the objectives and guiding principles of the national education and care services quality framework set out in section 3.
3. The Regulatory Authority is defined in section 5: "Regulatory Authority" means a person declared by a law of a participating jurisdiction to be the Regulatory Authority for that jurisdiction or for a class of education and care services for that jurisdiction...
4. Another relevant component of the regulatory scheme is the National Education and Care Services Quality Framework (also referred to in s 5 of the National Law as the National Quality Framework (NQF)). By s 5 of the National Law, the NQF is defined as being comprised of the National Law, the National Regulations, the National Quality Standard, and the prescribed rating system. The National Quality Standard is set out in the schedule to the National Regulations, and includes a number of specified quality areas, standards and elements: see National Law, s 5(1) and National Regulations, Reg 8 and Schedule 1.

The applicant's evidence and submissions

1. In addition to presenting his case in person to the Tribunal at a hearing that took place on 11 November 2024, the applicant provided the following written material: 1. Application for Tribunal review setting out grounds upon which he disagreed with decision (2 July 2024); 2. A document headed "expert evidence" with a number of annexures filed on 20 August 2024; 3. A document headed "evidence of submissions of applicant" filed on 12 September 2024. Also on that date the applicant filed a document objecting to an application by the respondent for an extension of time in which to file evidence. Both these matters relate to an application for confidentiality orders sought (and obtained by) the respondent. 4. A document headed "submissions of legal arguments by applicant" received by the Tribunal on 30 October 2024.
2. In reply submissions filed on 20 September 2024, the respondent raised objections to the document styled "expert evidence" being treated by the Tribunal as an expert report as it was characterised by the applicant. The respondent argued that the Tribunal should neither admit nor accept the content of the relevant document as evidence, referring to the Tribunal's Procedural Direction 3. It was contended that the applicant was not relevantly qualified to give expert evidence and even if he were, he could not do so in these proceedings given his status as the representative of the applicant.

Can the applicant give "expert evidence"?

1. By s 38(2) of the CAT Act 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".
2. However, while the rules of evidence do not apply, as the High Court has stated in the oft-quoted passage from The King v War Pensions Entitlements Appeal Tribunal; ex parte Bott (1933) 50 CLR 228 (ex parte Bott) at 256 (Evatt J), even where those rules do not apply: [T]his does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer "substantial justice."
3. Similar sentiments were expressed by the Court of Appeal in Sudath v Health Care Complaints Commission [2012] NSWCA 171 at [71], referring to ex parte Bott and to Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 36 FLR 482 at 491-493.
4. The Tribunal, like other courts and tribunals, has adopted a Procedural Direction for the provision of expert evidence, to which is attached an Experts' Code of Conduct (Procedural Direction), (referred to by the respondent in its reply submissions of 20 September 2024). While the Procedural Direction does not directly apply to proceedings in the Administrative and Equal Opportunity Division of the Tribunal, it contains some of the core principles that govern expert evidence. By paragraph 19, an expert is required to identify that they have read the Code of Conduct and agree to be bound by it: the applicant has done so (see Part 6 of his document). A proposed expert witness must also set out their qualifications "as an expert on the issue the subject of the report"; must identify any possible conflict of interest with the party for whom the report is prepared; and among other requirements, must provide the letter of instruction and identify the assumptions of fact made.
5. Paragraphs [14]-[16] of the Procedural Direction provide as follows: General duty to the Tribunal 14. An expert witness has an overriding duty to assist the Tribunal impartially on matters relevant to the expert witness's area of expertise. 15. An expert witness's paramount duty is to the Tribunal and not to any party to the proceedings including the person retaining the expert witness. 16. An expert witness is not an advocate for a party.

The applicant's evidence and submissions of 20 August 2024

1. The main points made by the applicant in this and his further filed material include the following: 1. The applicant notes that the internal review took 6 months (contrary to the statutory timeframe), and that he sent reminders on several occasions (see also para 10.6). 2. The applicant refers to interlocutory proceedings in relation to the making of confidentiality orders over some parts of the respondent's evidence. These were not further agitated at the hearing and need not be considered in these reasons. 3. The applicant raises a number of questions about the effectiveness and fairness of the decision making process. 4. He summarised his qualifications (see section 5), as well as attaching a resume. He has fifteen years' "experience in high education including curriculum preparation, setting exam questions, marking students exam and thesis, and lecturing". He has a masters' degree in engineering management, and a PhD in computer and IT. He also has ten years of management experience, "including director of innovation centre, and project leader". The applicant also contends that he has two years of experience preparing a development application (DA) for a childcare centre which DA was approved by Cumberland Council. He attached the management plan for that centre as presented in the DA. 5. In the section headed summary of findings (section 10), he states that the risk rating should have been "very low", challenging the respondent's view of what is "relevant work experience". In the applicant's view, his higher education and management experience was not sufficiently considered by the decision maker. 6. The applicant contends that the decision is characterised by a lack of transparency. Referring to the NQF, he claims that by not providing full data as to the risk assessment process, the decision maker has not provided "written notice of its decision and the supporting reasons" as it is required to do. 7. In a number of places in the document, the applicant takes issue with the assessment finding that he has "no experience or qualifications within the ECE [early childhood education] sector". He submits that his broad management and education experience in what he appears to accept to be "non-ECE education experience", and the period he spent preparing the DA for the centre, were erroneously ignored. This submission is repeated a number of times, as is his argument about the lack of transparency of the grading of the knowledge assessment, specifically the benchmark used as a passing grade. He contends that he was told by email and phone that he did not achieve 50% (though was later told he scored 63%, which was still below the threshold required). 8. Another matter raised by the applicant (see para 10.4) is that the knowledge test had a number of questions that asked for a reference to a particular section of the National Law or Regulations. 9. A further concern was that the primary decision did not indicate "what percentage is assigned to each assessment factor including management capability, … education and management experience (ECC and non-ECE), qualification, and knowledge assessment test result": para 10.5. 10. The applicant scored 63% the second time he did the knowledge assessment and contends that this should be sufficient: 10.5(c) and (d).

"Submissions of legal arguments by applicant": 30 October 2024

1. In this document, the applicant summarises what he describes as his reasons for taking the case to the Tribunal as follows: 1. Not releasing important assessment factors for child care provider, including management skills 2. irrelevant type of questions that focused on remembering the regulations' number 3. insufficient time for the exam -average of one min and 20 sec, which requires 3 mins per question; 4. hiding and refusing to release the applicant's test results to know his performance 5. refusing to release the threshold criteria for passing the knowledge assessment test 6. late response took five months and caused a loss of fee of around $550 for launching a new application.
2. In the ensuing paragraphs, he elaborates on each of these. The main focus (issue 1) is on what he considers to be a lack of transparency in the risk assessment and knowledge assessment, challenging the finding that he had "limited knowledge of the National Law and Regulations, on the basis that he contends that a result of 63% should be sufficient". He considers that it was unreasonable not to have taken into account his experience and qualifications which he claims are relevant management experience. He also identifies the failure to consider the fact that he had developed the operational management and evacuation plan for a childcare centre (see para 8.2; 8.5).
3. He repeats his concern that the expected threshold ought to be publicly available.
4. One specific concern identified is that the assessor "changed the rating of the tool from Medium to High to avoid calling [him] for interview".
5. He states: "I respectfully ask the NCAT to assess the type of questions in the knowledge assessment and advise the respondent to reduce the percentage of these questions" referring here to those that involve identifying relevant parts of the national regulations/laws.
6. He also contends that the requirement to achieve "considerably more than 50%" in the knowledge assessment is misleading.
7. The applicant contends that a lack of transparency in the assessment could lead to "bias and discrimination" as "they can rely on their personal opinion, which might be impacted by racial background against a certain applicants race or nationality".
8. In the concluding section the applicant summarises his responses to each of the six matters set out in the beginning.

Respondent's evidence and submissions

1. The Respondent filed the following evidence: 1. Open bundle of respondent's relevant documents filed 2 August 2024 2. Confidential bundle of respondent's relevant documents filed 8 August 2024, in relation to parts of which confidentiality orders were made by the Tribunal on 23 October 2024 pursuant to s 49, and ss 64(1)(b), (c) and (d) of the CAT Act. 3. Affidavit of Patricia Navea sworn 18 September 2024 (filed 19 September 2024) (Navea affidavit) 4. Affidavit of Nadal Hammoudi affirmed 5 September 2024 (Hammoudi Affidavit 1) 5. Affidavit of Nadal Hammoudi affirmed 19 September 2024 (filed 20 September 2024) (Hammoudi Affidavit 2)

Navea Affidavit

1. Ms Navea is a Legal Officer in the respondent's legal advice and legislation team. Among her duties are the provision of legal advice to the Regulatory Authority staff and the determination of applications for internal review.
2. After setting out aspects of what she describes as the co-regulatory framework governing provider approvals, she notes at [19] that: "the statutory scheme places the onus on the approved provider to ensure compliance by its educators and staff with legal and regulatory requirements. … As a consequence, there is necessarily significant reliance upon approved providers to effectively carry out their supervisory role of the education and care services they operate".
3. Ms Navea describes aspects of the risk based approach to provider approvals as follows: 1. General risk is considered by reference to the inherent and detected risk to the safety, health and well being of children within the early childhood education sector, while specific risk is based on information held about particular applicants [24]; 2. The determination of risk level of an applicant impacts the approvals process, including whether they will be invited to attend a knowledge assessment; 3. Current practice is to invite those applicants who present a medium or high risk to attend the knowledge assessment. Applicants seeking approval to become a new provider or establish a new service are generally considered medium or high risk. This approach is publicly available on the respondent's website [29]. 4. In the section headed relevance of knowledge assessment to approval decision making, she refers to Hammoudi Affidavit 1 where Ms Hammoudi explains the history and purpose of the knowledge assessment. 5. Ms Navea conducted the internal review and outlines the material to which she referred in making the IRD at [34]. At [37] she states that she adheres to the decision she made for reasons summarised at [37] (a)-(c). 6. Ms Navea explains at [42] that in her dealings with the applicant, "it was apparent that he had wanted me to disclose the score he had achieved in the knowledge assessment, as well as the indicative "pass" benchmark used by the respondent". She did not do so and referred to correspondence with the applicant which is included in the bundle of material filed with the Tribunal and also to the affidavit evidence of Ms Hammoudi. 7. She also noted that after the IRD had been made and the result provided to the applicant, she was provided with documents titled "Plan of Management" January 2022 and "Emergency Evacuation Plan" 29 December 2021 which she annexed. She reviewed those documents and stated that they did not change her view.

Hammoudi Affidavit 1

1. This affidavit was filed in support of the application for confidentiality orders over certain parts of the material that was filed with the Tribunal. 1. Ms Hammoudi is Assessment and Risk Coordinator in the respondent's Approvals and Services Team and has held that role since September 2023. She has worked in various roles in the NSW Regulatory Authority for 19 years, including two years as relieving manager of the Approvals and Services team. 2. She states that the respondent introduced a knowledge assessment test in May 2016 to assist it in determining whether an applicant can demonstrate that they understand how an education and care service is to operate in compliance with the NQF and that the applicant has the management capacity to operate such a service. 3. As indicated by Ms Navea, in Ms Hammoudi's experience most first time applicants for provider approval are invited to undertake the knowledge assessment as they are assessed as medium or high risk. 4. In 2021, state and territory regulatory authorities agreed to implement a nationally consistent approach and a national online assessment platform commenced operating from March 2022. 5. She outlines the nature of the assessment and the amount of time provided to complete the test. While undertaking the assessment, applicants have access to the National Law, National Regulations, approved learning frameworks and the Australian Children's Education and Care Quality Authority's guide to the NQF. 6. A question bank was developed by the University of Wollongong under contract between the University and the respondent and the questions are shared with the other jurisdictions. There is a confidentiality agreement in place over that material. 7. The respondent considers that a national standardised assessment system is desirable because it promotes consistent protections across all the jurisdictions. It also prevents applicants from exploiting any differences between those jurisdictions. 8. Ms Hammoudi refers to the applicant's test results in the open bundle of material. She indicates that the benchmark is considerably higher than 50%. If an applicant's score is close enough to the benchmark they may be invited to undergo a further assessment. On neither of the occasions that the applicant sat the test were his results considered to meet either the pass benchmark or the benchmark for further assessment. 9. Ms Hammoudi stressed that the knowledge assessment is indicative, not determinative and an application will be determined on all relevant information. 10. The respondent's current practice is to keep the benchmark confidential, in accordance with the risk management framework agreed to across all jurisdictions in July 2023. However the respondent does identify to an unsuccessful applicant the key areas of knowledge they have failed to demonstrate and in that regard she refers to a copy of a letter she sent the applicant on 11 May 2023 which is included in the open bundle of material.

Hammoudi Affidavit 2

1. This affidavit specifically addresses the risk assessment tool used by the respondent. 1. Risk indicators are considered at both quantitative and qualitative levels. She outlines the data sources used in relation to the quantitative information. 2. As for the qualitative information, this includes the use of professional judgement by the regulatory officers. A particular example relevant in this case is where a regulatory officer will consider the nature of the applicant's experience in the category "relevant industry experience for directors and owners". 3. The initial risk rating of high, medium or low is manually selected by an officer based on a consideration of all the relevant sources of information. That risk rating (which in this case is in the open bundle of material) will determine whether an applicant will be invited to a knowledge assessment. She also explains that the risk assessment ought to have been calculated as high given the applicant's score of 63% which did not make the benchmark for further assessment, but due to a technical glitch it was recorded as medium.

Evidence at hearing

1. The respondent did not cross examine the applicant at the hearing. The applicant cross examined both witnesses for the respondent.
2. Ms Hammoudi attended and was cross examined in person by the applicant. He asked her about the form in which the results of assessments are entered and confirmed that the results in relation to qualitative factors are entered manually.
3. She was also asked whether an assessor has a right to increase a rating: she explained that a person with experience in early childhood education would likely be assessed as low risk, but someone with no such experience would be medium or high risk.
4. She also explained that the "CC" risk assessment tool is for centre based child care (by contrast with family day care which is referred to as "DC"). The knowledge assessment differs as between those forms of service.
5. Ms Navea was cross examined by video link. The applicant put to her that if the questions in the knowledge assessment were broken down into categories, he had answered some parts better than others and asked her why she had focused on the questions about safety rather than those on which he scored better. She reiterated that the knowledge assessment was one part of the overall assessment
6. He also asked her why his knowledge and experience was not considered relevant and she repeated that she did consider his knowledge and experience but it was not experience in early childhood education.
7. The applicant put to her that it would be expected that the provider would consult others with relevant expertise in relation to relevant matters. She explained that the approved provider has a very big role in ensuring that the responsibilities under the National Law are adhered to.
8. She was asked why she did not release the test results (the score of 63%) until the applicant took the matter to the Tribunal and she explained that this was in part due to the national scheme and the confidentiality arrangements. She added that it could be misleading given that it was only a part of the overall assessment that underpinned the decision: all relevant matters were taken into account.
9. Finally she was asked about the management and evacuation plans, which he explained had been part of a development application that cost the applicant $120,000. She stated that these were not provided as part of the provider approval application but were documents that had been submitted to council for a different purpose. Once she had obtained them, she did consider them.

Respondent's submissions

1. The respondent provided written submissions as follows: 1. Submissions of respondent 6 September 2024, in support of the confidentiality/non-publication orders that were made on 23 October 2024; 2. Reply Submissions of respondent, addressing the applicant's purported reliance on his own expert evidence (referred to above at [19] and [25]; and 3. Respondent's outline of submissions, received on 8 November 2024.

Respondent's outline of submissions

1. The respondent identified the issue before the Tribunal as being "whether the decision to refuse the grant of provider approval to the applicant was the correct and preferable decision".
2. The respondent outlined the material that was before the Tribunal, including the confidential bundle of material provided on 8 August 2024. The respondent also set out background facts at [7]-[18] and outlined the applicable law and principles, including those governing internal and external review: National Law, ss 190-192: see [19]-[29]. At [21] the respondent referred to case law in which it has been held that strict compliance is required to the National Law: referring to 3 Angels Family Day Care Pty Ltd v Secretary, Department of Education [2017] NSWCATAD 265 at [22]; and Famous Kids Family Day Care Pty Ltd v Secretary, Department of Education [2023] NSWCATAD 10 (Famous Kids) at [62]-[63].
3. Section 14 of the National Law was amended from 1 July 2023. Section 14 now expressly includes a power of the respondent to require an applicant for provider approval to undergo an assessment of the person's knowledge of the NQF for the purpose of carrying out an assessment of whether he or she is fit and proper within the meaning of the National Law: at [29]. The respondent notes that this amendment was made by the Early Childhood Legislation Amendment Act 2022 (Victoria), which has effect in NSW by operation of the Application Act.
4. The respondent reiterated its position that the applicant was not presently a fit and proper person to be a person with management and control of an education and care service as he had not established that he had the requisite knowledge and ability to undertake that role. The respondent then made the following points about the specific application before the Tribunal. 1. The applicant has no relevant industry qualifications nor experience in the childcare sector. The plans he relies on as demonstrating that experience (the management and evacuation plans) were developed in the context of a DA: that does not render them "education experience", nor does approval of the DA render that experience relevant. 2. His professional qualifications and management experience are not in the field of early childhood education and thus are of limited relevance. 3. The written knowledge assessment should be given significant weight in the determination of fitness and propriety in the absence of any relevant experience in early childhood education. The respondent submits that it represents a way in which a person without that experience can demonstrate relevant knowledge. His poor scores (39% on the first test and 63% on the second) are both well below the indicative pass mark. There is no evidence that he has sought to improve his knowledge or understanding of those matters. Rather, his appeal is focused on what he contends are problems with the assessment process

The regulatory framework: strict compliance

1. The regulatory scheme governing this application has been the subject of a number of decisions of this Tribunal in which the Tribunal has referred to the National Law as a law that requires "strict compliance": see for example Faaea v Secretary, Department of Education [2018] NSWCATAD 85 at [25] where the Tribunal referred to CTG v NSW Department of Education, Early Childhood and Care Directorate [2017] NSWCATAD 60 at [45], citing Long Life Family Daycare v Director General Education Directorate [2016] ACAT 69). In Montessori Stars Pty Ltd v Secretary, Department of Education [2021] NSWCATAD 295 (Montessori Stars), the Tribunal stated at [40]: It should be observed that the National Law and the National Regulations require strict compliance by providers and educators: see 3 Angels Family Day Care Pty Ltd v Secretary, Department of Education [2017] NSWCATAD 265 at [22]; DPW v Secretary, Department of Education [2018] NSWCATAD 257 at [29]; Faaea v Secretary, Department of Education [2018] NSWCATAD 85 at [25].
2. In Famous Kids, referred to by the respondent in its submissions at [21], the Tribunal stated at [62]-[63]: 62 The Secretary submitted that the regulatory scheme under the National Law and the National Regulations is highly detailed and prescriptive, reflecting a deliberate choice by Parliament to pursue a particular regulatory approach. It followed that the National Law calls for strict compliance by those who are required to apply it (3 Angels Family Day Care Pty Ltd v Secretary, Department of Education [2017] NSWCATAD 265 at [22]; CTG v NSW Department of Education, Early Childhood and Care Directorate [2017] NSWCATAD 60 at [45]; DPW v Secretary, Department of Education [2018] NSWCATAD 257 at [29]). 63 We accept that submission. The high level of detail and prescription in the National Law and National Regulations requires a high degree of vigilance and appropriate systems by approved providers in order to successfully comply with the obligations the legislation imposes.
3. Similar sentiments were expressed in Mother's Choice Family Day Care Pty Ltd v Secretary, Department of Education [2020] NSWCATAD 194 where the Tribunal at [6], referring to the authorities cited in Montessori Stars, stated "The National Law imposes a large number of regulatory requirements and requires strict compliance" (and see also South Asian Australian Association v Secretary, Department of Education [2024] NSWCATAD 272 at [59]-[62]).

The role of the Tribunal: merits review

1. The Tribunal's role, as set out above, is to decide what is the correct and preferable decision, taking into account not only the material that was before the person who made the decision under review (here, the internal reviewer), but any further information or evidence that is provided to it, including material that postdates the decision and/or was not before the decision maker.
2. As the respondent identified in its submissions, the applicant appears to be seeking to have the Tribunal make findings about the appropriateness of the process undertaken by the respondent. A key example is provided by the applicant's submission, extracted above, where he states: "I respectfully ask the NCAT to assess the type of questions in the knowledge assessment and advise the respondent to reduce the percentage of these questions"
3. The issue before the Tribunal is whether the decision to refuse to grant the applicant provider approval on the basis that the applicant was not relevantly a fit and proper person was the correct and preferable decision. That decision is to be made by reference to the statutory scheme and the evidence before the Tribunal. It is not the function of the Tribunal to evaluate the legislation and the manner in which it is implemented. Nor is it a function of a merits review tribunal to determine the lawfulness of a decision. Even if (which the Tribunal does not consider to be the case), there were some basis for finding that the decision was invalid, that would not prevent the Tribunal from determining what is the correct and preferable decision. This is because it is well established that a merits review tribunal has jurisdiction to review "a decision in fact made, regardless of whether or not it is a legally effective decision": Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 24 ALR 307 at 314, a principle that was affirmed and restated by the High Court in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 at [39]-[40].

Is the applicant a fit and proper person?

1. The applicant has focussed his case on what he contends were flaws in the decision-making process and in particular, his disagreement with the risk assessment process and its application to him. In National Education Childcare Service P/L v Secretary Department of Education [2024] NSWCATAD 105 (National Education), where a similar approach had been taken by the applicant, the Tribunal noted (at [112]) that in its view, the "real issue in the proceedings is whether [the applicant] is a fit and proper person, and with respect, it is not whether she has been poorly treated".
2. In CYD v Secretary of the Department of Education NSW [2017] NSWCATAD 190 (CYD), the Tribunal, referring to the requirement that an applicant be a "fit and proper person", observed at [89]: 89. The assessment whether the applicant is a fit and proper person is a value judgment by the Tribunal; it takes its meaning from its context, the activities in which the person is engaged and the ends to be served by those activities. The assessment relates to not only character, reputation and moral integrity but also includes public confidence that the person is able to maintain high standards of rectitude and that their likely future conduct will keep to those standards. The question as to whether a company is fit and proper person may be determined by reference to the conduct, character and reputation of a single person associated with the company.
3. In National Education, after setting out the observation from CYD at [89], the Tribunal stated (at [96]): 96 We take this observation of the Tribunal to be authority for the premise that the public needs to be satisfied that the holder of the authority has the requisite skill to perform the duties and discharge the functions of the service consistent with its objects. In that regard we take from the National Law that an approved operator must be competent, that is to possess competencies and knowledge to enable the approved provider to provide quality education and care services to children in a manner that would ensure their safety, health and well being, and improve the educational and developmental outcomes for those children. (emphasis added)…
4. The Tribunal considers that to be an accurate statement of what is required for a person to meet the requirements set out in the National Law to be approved as a provider. In this case, the issue is whether the applicant possesses "competencies and knowledge to enable the approved provider to provide quality education and care services to children in a manner that would ensure their safety, health and well being, and improve the educational and developmental outcomes for those children".

Conclusion

1. Having considered all the material before it and having regard to the objects and principles of the National Law and the broader regulatory framework, the Tribunal has determined, for the reasons set out above, that the correct and preferable decision is not to grant the applicant provider approval.

Orders 1. The decision under review is affirmed.

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: 06 February 2025