Review of the decisions under s 5(1) of the ADJR Act
40 Section 5(1) is pivotal to the application of the ADJR Act. The plurality in Griffith University v Tang noted at [41] that three distinct elements are involved in that provision. First, there must be a "decision" to which the ADJR Act applies. Second, there must be an applicant who is "aggrieved" by that decision. Third, there must be reliance upon one or more of the listed grounds of review.
41 Although it is not strictly necessary to address the third element, it may be useful to outline the applicant's grounds to give context to the proceeding. The decision of 4 December 2017 was based primarily upon a construction of cl 43(1)(f) of Sch 1A of the HECS Act that a "student" who "enrols" and is "enrolled" must be a bona fide student. The decision proceeded on the basis that students who were not bona fide students were not entitled to VET FEE-HELP assistance and that, therefore, the applicant was not entitled to payment under cl 55 of any amounts for such students. However, the applicant proposes to argue that the requirements of cl 43 of Sch 1A are to be read according to their ordinary language and that there is no basis for any implication that students must be bona fide students. The applicant asserts that the 4 December 2017 decision is invalid to the extent that it decided that amounts would not be paid to the applicant for some students because, inter alia, the misconstruction of cl 43 involved in the decision is an error of law. The applicant asserts that to the extent that the decision of 16 March 2008 may have overtaken the earlier decision, it suffers from the same difficulties.
42 The present application is concerned with the first element of s 5(1) of the ADJR Act: that there must be "a decision to which this Act applies". That expression is defined in s 3(1) to mean "a decision of an administrative character made…under an enactment". The plurality in Griffith University v Tang noted at [59] that this definition itself involves three elements: the first, "a decision"; the second, "of an administrative character"; and the third, "made … under an enactment". It was said at [60] that there are dangers involved in failing to look at the definition in s 3(1) other than as a whole. The present application is concerned, however, with whether the decisions of 4 December 2017 and 16 March 2018 satisfy the third of these elements.
43 In Griffith University v Tang, the High Court considered what was meant by the phrase "a decision…made…under an enactment". The plurality held:
78 ...As noted earlier in these reasons, the presence in the definition in the AD(JR) Act of the words "(whether in the exercise of a discretion or not…)" indicates that the decision be either required or authorised by the enactment. Mayer shows that this requirement or authority may appear sufficiently as a matter of necessary implication. However, whilst this requirement or authority is a necessary condition for the operation of the definition, it is not, by itself, sufficient.
79 The decision so required or authorised must be "of an administrative character". This element of the definition casts some light on the force to be given by the phrase "under an enactment". What is it, in the course of administration, that flows from or arises out of the decision taken so as to give that significance which has merited the legislative conferral of a right of judicial review upon those aggrieved?
80 The answer in general terms is the affecting of legal rights and obligations. Do legal rights or duties owe in an immediate sense their existence to the decision, or depend upon the presence of the decision for their enforcement? To adapt what was said by Lehane J in Lewins, does the decision in question derive from the enactment the capacity to affect legal rights and obligations? Are legal rights and obligations affected not under the general law but by virtue of the statute?
....
89 The determination of whether a decision is "made … under an enactment" involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be "made … under an enactment" if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice.
(Underlining added.)
44 The respondents do not contend that the first criterion from [89] of Griffith University v Tang - that the decision must be expressly or impliedly required or authorised by the enactment - is not satisfied. The contentious issue is whether the second criterion is satisfied. The respondents submit that the applicant's legal rights under cl 55 are unaltered and unaffected by the decisions.
45 It is necessary to begin by identifying the applicant's "legal rights" that may be altered or affected by the decisions in question. The applicant's submissions have not directly addressed this issue. However, the originating application seeks an order that the Commonwealth "pay to the Applicant the amount equal to the amount of VET FEE-HELP assistance that the Attachment 1 Students are entitled to". It may be inferred that the legal right asserted by the applicant is the right to be paid, in respect of each student entitled to assistance, the amount that is payable pursuant to cl 55 of Sch 1A.
46 Clause 43 sets out the criteria for a student's entitlement to VET FEE-HELP assistance. Clause 55 then provides, relevantly, that if a student is entitled to an amount of VET FEE-HELP assistance, the Commonwealth must: lend the student the amount; and pay the amount to the provider in discharge of the student's liability to pay his or her VET tuition fee. The effect of the provision is that the Commonwealth is required to pay an amount to an approved VET provider where:
(1) the student is entitled to an amount of VET FEE-HELP assistance under cl 43;
(2) the Commonwealth lends the student the amount;
(3) the student has a liability to an approved provider to pay his or her VET tuition fee; and
(4) the payment to the provider is in discharge of that liability.
47 It is beyond the scope of consideration of the present application to examine when a person is entitled to VET FEE-HELP assistance or has a liability to pay a VET tuition fee. It is enough to proceed on the basis that where cl 43 is satisfied, cl 55 requires payment of a sum of money by the Commonwealth to a VET provider. The VET provider has a legal right to payment of the amount that is payable under that provision. That is the legal right that must be altered or otherwise affected.
48 As the respondents accept, cl 55 contemplates that someone on behalf of the Commonwealth will make a decision as to whether the Commonwealth is required to pay an amount to a VET provider and what the amount is. Someone will also have to make a decision to actually pay the amount that is assessed as payable. In this case, the decisions of 4 December 2017 and 16 March 2018 were, in effect, that claimed amounts totalling $29,174,895 were not payable by the Commonwealth to the applicant under cl 55, and that those amounts would not be paid.
49 The decisions in question were signed by Mr Morling and expressed to be made by the Department of Education and Training. The originating application asserts that the decisions were made by the Minister. It is by no means clear that Mr Morling acted as delegate of the Minister. Even if he did, a decision by the Minister is not, or is not necessarily, a decision by the Commonwealth. However, in the course of argument, the respondents accepted that Mr Morling's decisions were decisions of the Commonwealth. The issue is whether those decisions alter or otherwise affect the applicant's legal right to payment of the amounts payable under cl 55.
50 In Griffith University v Tang at [80], the plurality posed the question, "Do legal rights or duties owe in an immediate sense their existence to the decision, or depend upon the presence of the decision for their enforcement?" The answer to that question (adapted to the present circumstances), will be crucial to determining whether the second criterion is satisfied in the circumstances of this case.
51 The approach taken in Perdikaris v Deputy Commissioner of Taxation (2008) 172 FCR 412 is instructive. There, the primary judge found that the determinations under challenge did not affect the appellant's legal rights. The Full Court at [19] approved the following passage from the primary judgment:
Were the respondent to bring recovery proceedings against the applicant, the applicant would not be precluded by the determinations from asserting that his employer had made the relevant PAYE deductions or withheld the relevant PAYG amounts, for which he contends. All that the determinations do is deny the applicant the credits which he contends the Commissioner must make or to which he submits that he has become entitled, unless and until he establishes, he carrying the onus of proof, that his employer made the deductions or withheld the payments as claimed.
The Full Court added at [21]:
In proceedings in a court of competent jurisdiction to recover the amount of the assessments, the appellant would be at liberty to prove that his employer made the deductions or withheld the amounts. The Commissioner's determinations are no barrier to that. The primary judge correctly upheld the Commissioner's objection to competency.
52 Perdikaris demonstrates that it is necessary to consider whether the decisions in question have any effect upon the entitlement of the applicant to enforce its legal right to payment of any amounts payable under cl 55.
53 The HECS Act does not expressly provide a remedy for the enforcement of the Commonwealth's liability. However, in Mallinson v The Scottish Australian Investment Company Limited (1920) 28 CLR 66, the High Court stated the applicable rule at 70:
"Wherever an Act of Parliament creates a duty or obligation to pay money, an action will lie for its recovery, unless the Act contains some provision to the contrary"; and where the amount is liquidated the action of debt is appropriate.
[See also Commonwealth v SCI Operations Pty Ltd (1998) 192 CLR 285 at [65]; Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290 at [83]; Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd (2008) 237 CLR 473 at [51]; Pape v Commissioner of Taxation (2009) 257 ALR 1 at [38], [140], [452]].
54 As there is no statutory provision to the contrary, an approved provider may recover an amount payable under cl 55 as a debt in a court of competent jurisdiction.
55 If a student is entitled to assistance under cl 43 (and its other requirements are satisfied), an amount is payable by the Commonwealth to the VET provider under cl 55. The applicant's legal right to payment owes its existence to cl 55 and depends solely upon whether the requirements of that provision are met. That right is not conditioned upon the making of any favourable decision by the Commonwealth, nor is the right denied by the making of any unfavourable decision. The decisions made have no effect upon the applicant's right to sue for any debt that arises under cl 55. It remains open to the applicant to enforce its legal right through proceedings in a court of competent jurisdiction.
56 The applicant submits that the decisions affect its legal right because payment of the amounts it claims to be entitled to will be delayed until the conclusion of legal proceedings for the enforcement of that right. However, there is an element of circularity in that argument. The argument assumes that the applicant has a legal right to payment of particular amounts that is capable of being affected, when that is the very matter of controversy. In my opinion, the second criterion in Griffith University v Tang does not operate upon such an assumption. Further, applying the reasoning in Perdikaris, it is not enough that the effect of the decisions is to deny the applicant payment until it establishes its entitlement in a court.
57 The cases relied upon by the applicant, Minister for Immigration and Ethnic Affairs v Mayer and Peverill v Meir, are of no assistance in this case. Those cases were only concerned with the first criterion later identified in Griffith University v Tang, and not the second.
58 The respondents' submission that the decisions do not alter or otherwise affect the applicant's legal rights must be accepted. Therefore, there is no "decision...made…under an enactment" within s 3(1) and no "decision to which this Act applies" within s 5(1) of the ADJR Act. The application for review of the decisions under the ADJR Act is incompetent.