ProGalor Hub Pty Ltd v Secretary, Department of Education

NCAT Administrative and Equal Opportunity|2020-12-10

Introduction.

ProGalor Hub Pty Ltd ('ProGalor Hub') is a Registered Training Organisation ('RTO') which provides, among other things, vocational education and training.
On 6 May 2019, ProGalor Hub and the Department of Education ('the Department') entered a contract in writing under the Smart and Skilled Program for delivery by ProGalor Hub of government subsidised courses ('the contract'). The terms and conditions were in writing.
On 14 May 2020, the Commonwealth Administrative Appeals Tribunal ('the AAT) set aside a decision made by the Australian Skills Quality Authority ('the Authority)' to cancel ProGalor Hub's registration as an RTO. Instead, the AAT removed five qualifications and three units of competency from the scope of ProGalor Hub's registration. It suspended another five qualifications for 12 months, and imposed further conditions in relation to other qualifications, including capping the number of students in some of them.
On 26 June 2020, the Department advised ProGalor Hub of its decision to terminate the contract with immediate effect on the basis that the decision of the AAT was an adverse regulatory decision, which affected ProGalor Hub's ability to perform its obligations under the contract. As such it was 'event default' which, under cl 21.2 of the contract, entitled the Department to, among other things, terminate the contract.
On 27 July 2020 ProGalor Hub Pty Ltd lodged an application with this Tribunal for an administrative review of the decision by the Department of Education to terminate the contract.
At a case conference on 25 August 2020 the Department submitted that the Tribunal did not have an administrative review jurisdiction to review the decision to terminate the contract. The Tribunal made orders for the filing of submissions on the jurisdictional issue by both parties and ordered that the issue of jurisdiction would be determined on the papers.
The Department filed its submissions in time. ProGalor Hub has not filed any submissions, despite the time in which it was to do so being extended, at its request, from 22 September 2020 to 16 October 2020. ProGalor Hub has not offered any explanation for not lodging submissions on jurisdiction.

Material before the Tribunal.

In considering the jurisdictional issue I have had regard to the following documents: 1. ProGalor Hub's application for administrative review file 27 July 2020 with: 1. annexed termination decision of 26 June 2020; and 2. print out of section 107 of the Education Act 1990 (NSW). 1. The Department submissions dated 2 September 2020 with: 1. screenshot from the Department's contract management system showing that ProGalor Hub accepted the Smart and Skilled Terms and Conditions on 6 May 2019; and, 2. copy of the Smart and Skilled Terms and Conditions.

Should the jurisdictional issue be determined without a hearing?

Section 50(2) to (4) of Civil and Administrative Tribunal Act 2013 ('the CAT Act') provides: (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first: (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.
In this case, both parties were given an opportunity to address whether the jurisdictional issue should be determined on the papers at the case conference and also had the opportunity to address the issue in subsequent submissions. As already noted, no submissions have been received from ProGalor Hub. Having reviewed all the materials, I am satisfied that this is matter than can be determined in the absence of the parties by considering the materials lodged by the parties. I therefore dispense with a hearing.

Does the Tribunal have administrative review jurisdiction?

In its application ProGalor Hub did not directly address how it says the Tribunal has jurisdiction to review the decision. It did annex to its application a copy of s 107 of the Education Act which is concerned with the administrative review of certain decisions made under that Act.
The Department asserts that there is no administrative review jurisdiction.
Section 30 of the CAT Act relevantly provides that: (1) The Administrative Decisions Review Act 1997 provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator. Note. See section 9 of the Administrative Decisions Review Act 1997. (2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its administrative review jurisdiction: (a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings, (b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act, the Administrative Decisions Review Act 1997 or enabling legislation in connection with the conduct or resolution of such proceedings. (3) An administratively reviewable decision is a decision of an administrator over which the Tribunal has administrative review jurisdiction. Note. See section 7 of the Administrative Decisions Review Act 1997. (4) An administrator, in relation to an administratively reviewable decision, is the person or body that makes (or is taken to have made) the decision under enabling legislation. Note. See section 8 of the Administrative Decisions Review Act 1997. … (6) An administrative review application is an application made to the Tribunal for an administrative review decision. Note. Chapter 3 (Process for administrative reviews under this Act) of the Administrative Decisions Review Act 1997 also makes provision for the role of administrators when making administratively reviewable decisions and the role of the Tribunal when conducting an administrative review of such decisions.
Section 9 of Administrative Decisions Review Act 1997 (NSW) (the ADR Act) then provides the circumstances in which the Tribunal has administrative review jurisdiction. It relevantly provides: (1) The Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if 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: (a) in the exercise of functions conferred or imposed by or under the legislation, or (b) in the exercise of any other functions of the administrator identified by the legislation. … (5) Nothing in this section permits administrative review jurisdiction to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by another Act.
"Enabling legislation" is defined in s 4: enabling legislation means legislation (other than this Act or any statutory rules made under this Act) that: (a) provides for applications to be made to the Tribunal with respect to a specified matter or class of matters, or (b) otherwise enables the Tribunal to exercise functions with respect to a specified matter or class of matters.
The first question confronting the Tribunal, when seeking to exercise its administrative review jurisdiction in this case, is whether there is any "enabling legislation" which provides for the applicant to seek administrative review of the decision to terminate the contract: see Dubow v Mid-Western Regional Council [2019] NSWCATAP 242.
The Department's submissions assert that the decision to terminate ProGalor Hub's contract is not an administratively reviewable decision, and that therefore, there is no jurisdiction in the Tribunal to review that decision. While I agree that this submission is correct, the Department's submissions are not helpful in that they do not address s 107 of the Education Act, which ProGalor Hub annexed to its administrative review application. This, I think, indicates that it was relying on that section when making that application.
Section 107 of the Education Act provides: 107 Applications for administrative reviews of certain decisions (1) An application may be made to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions - (a) a recommendation of the Authority that registration of a non-government school be refused, (b) a recommendation of the Authority that registration of a non-government school not be renewed, (c) a recommendation of the Authority that registration of a non-government school be cancelled, (d) a recommendation of an authorised person that the Minister refuse to register a child for home schooling, (e) a recommendation of an authorised person that the registration of a child for home schooling be cancelled, (e1) a direction of the Secretary under section 26H concerning the government schools in which a particular student may be enrolled, (e2) a recommendation of the Non-Government Schools Not-for-profit Advisory Committee under Division 3 of Part 7 that the Minister make a for profit declaration or a non-compliance declaration in respect of a school (including a recommendation on any consequent suspension or reduction of, or imposition of conditions on, the provision of financial assistance), (e3) a decision of the Authority - (i) to refuse to grant approval under Part 7A, or (ii) to impose conditions on, amend, suspend or cancel such an approval, (f) a decision of the Authority not to accredit a school, (g) a decision of the Authority not to renew the accreditation of a school, (h) a decision of the Authority to cancel a school's accreditation, (i) a non-attendance direction given by the Minister under section 26HA that results in the student being directed not to attend school for more than a total of 20 school days in a 12 month-period. (2) A person is entitled to make any such application only if the person is or is required to be given notice of the recommendation, direction or decision under this Act.
The decision made by the Department is not concerned with: 1. the registration of, or a funding approval with respect to, a non-government school: ProGalor Hub is an RTO; 2. the home schooling of a child; 3. a schooling direction given by the Secretary under s. 26H; 4. a non-attendance direction given by the Minister to a student under s 26HA; 5. an approval to provide courses to foreign students to which Part 7A of the Education Act applies; or, 6. a decision made by the NSW Education Standards Authority concerning the accreditation of a school. These are all matters concerning which s 107 provides the Tribunal has administrative review jurisdiction.
Therefore, s 107 of the Education Act does not give ProGalor Hub the right to seek administrative review of a decision made by the Department to terminate its subsidy funding under clause 22 of the contract. There is no enabling legislation providing for applications to be made to the Tribunal with respect to decisions of that type.
Consequently, ProGalor Hub's application for administrative review is dismissed for want of jurisdiction.

Orders.

The Tribunal makes the following orders: 1. Under s50(2) of the Civil and Administrative Tribunal Act 2013 the Tribunal dispenses with a hearing of the jurisdictional issue in this matter. 2. The administrative review application is dismissed for want of jurisdiction.

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: 10 December 2020

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Judgment (6 paragraphs)

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Legislation Cited (2)

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