Star Training Academy Pty Ltd v Commissioner of Police

Star Training Academy Pty Ltd v Commissioner of Police - [2023] NSWSC 153 - NSWSC 2022 case summary — Zoe

JUDGMENT

By further amended summons filed on 30 March 2022, the plaintiff, Star Training Academy Pty Ltd ("Star"), seeks judicial review of the decision made by a subdelegate of the Commissioner of Police (NSW) ("the Commissioner") on 10 September 2021 to revoke Star's approval to provide accreditation courses for security officers under s 27A of the Security Industry Act 1997 (NSW) ("the Act").
Before any person in NSW can be employed as a security officer, he or she must first undertake security training - much like a person seeking to be employed to serve alcohol must first complete responsible service of alcohol (RSA) training. Such courses are offered by various teaching colleges who provide professional accreditation courses. A company or individual cannot offer such a course unless it is approved to do so under the Act. Such approval can be granted subject to conditions.
The Commissioner is responsible for the implementation of that Act and is the relevant administrative decision-maker. She has delegated many of her responsibilities under the Act to the Security Licensing and Enforcement Directorate ("SLED") within the NSW Police Force.
Star is a company which provides professional accreditation courses in relation to a range of areas of work including the provision of private security services. On 12 December 2014, a subdelegate of the Commissioner exercised the power under s 15(2)(b) of the Act to approve Star to provide training, assessment and instruction in relation to the carrying on of security activities under a given licence (for the purposes of s 15(1)(d), noting that s 15 provided "general suitability criteria" for the granting of a licence).
Star is also a registered training organisation ("RTO"), which requires approval from the Australian Skills Quality Authority ("ASQA"). The significance of that fact will be explained below.
On 11 August 2021, a subdelegate of the Commissioner, Lisa Stockley (Assistant Director (Industry Regulation) at SLED), served on Star a notice to show cause ("NSC") as to why Star's approval to provide training, assessment and instruction in relation to the carrying on of security activities should not be revoked. Star provided a written response through its solicitor on 24 August 2021.
On 10 September 2021, Ms Stockley revoked Star's approval under s 27A(2)(b) of the Act ("the revocation decision").
Shortly thereafter Star sought review of the revocation decision in the NSW Civil and Administrative Appeals Tribunal ("NCAT") under s 29 of the Act.
On 23 September 2021, a Senior Member of NCAT held that the Commissioner's revocation of Star's approval under s 27A of the Act did not fall within the terms of s 29(1) of the Act and thus the Tribunal lacked jurisdiction to hear the application: STAR Training Academy Pty Ltd v Commissioner of Police [2021] NSWCATOD 166.
Star appealed against that decision to an Appeal Panel of NCAT but on 18 November 2021 that decision was upheld by the Appeal Panel: STAR Training Academy Pty Ltd v Commissioner of Police [2021] NSWCATAP 370.
By amended summons filed on 15 November 2021, Star commenced proceedings in this court invoking its supervisory jurisdiction as regulated by s 69 of the Supreme Court Act 1970 (NSW) to review that revocation decision. It was common ground that Star has no alternate statutory right of appeal or review and that these proceedings were brought within time.
In late 2021, the parties agreed on an interim regime pending the outcome of these proceedings whereby Star was permitted to provide security training one course at a time subject to oversight from SLED.

[2]

The hearing

The matter was listed for a two day hearing on 29 and 30 March 2022. Mr James King of counsel appeared for Star and Mr James Emmett SC appeared with Ms Alison Hammond for the Commissioner. Affidavits were served by both parties, including the affidavits of the decision maker, Lisa Stockley. In addition, a large amount of material was provided including the 8-volume court book, submissions, authorities and additional exhibits.
Star relied upon four affidavits by Javaid Malik, the CEO of Star, dated 19 November 2021, 7 December 2021, 18 February 2022, and 25 February 2022 and the affidavit of Jeremy Charles McNamara, an independent consultant engaged by Star, dated 24 March 2022. The Commissioner filed three affidavits of Lisa Stockley dated 24 November 2021, 23 December 2021 and 17 January 2022. Further affidavits of Jason Thomas dated 15 March 2022, Maikeli Latukefu dated 15 March 2022, Tony Vulic dated 15 March 2022, and Lea Stevenson dated 16 March 2022 were included in the court book but were not ultimately read by the Commissioner.
Mr McNamara gave evidence on 29 March 2022. Mr Malik gave evidence on 29 and 30 March 2022. Ms Stockley commenced her evidence on 30 March 2022 but was unable to finish it, so the matter was stood over to 8 April 2022 for further hearing. On that day, the proceedings were stood over for a further day of hearing on 11 May 2022. Final submissions were made on that day, and I reserved my decision.
On the first day of the hearing, it became apparent that the arguments raised in Star's written submissions and the evidence sought to be adduced did not align in some areas with what was pleaded in the amended summons. In circumstances where the hearing could not be finalised in the allocated time in any event, I granted Star leave to file in court and move on a further amended summons which resolved these issues. This was done with the consent of the Commissioner. The further amended summons was filed on 30 March 2022 and was in these terms: "Certiorari in respect of revocation decision 1. Pursuant to s 69 of the Supreme Court Act 1970 (NSW), order that the decision made by a delegate of the defendant dated 10 September 2021 to revoke the approval of the plaintiff under s 27A of the Security Industry Act 1997 (NSW) be quashed. Particulars a. Denial of procedural fairness (ASQA audit): The decision involved jurisdictional error insofar as the delegate failed to observe the requirements of procedural fairness with respect to allegedly prejudicial information obtained by her from the Australian Skills Quality Authority (ASQA). In particular: i. In making her decision, without notice to the plaintiff, the delegate: A. obtained from ASQA a copy of a document described as ASQA's initial 'Performance assessment (audit) report for Star Training Academy Pty Ltd' dated 3 September 2021 (ASQA Report); and B. made inquiries of ASQA sufficient to permit her to say that 'SLED understands that STAR was notified verbally by ASQA of the preliminary audit findings during their closing meeting on 5 August 2021' (ASQA Understanding). ii. The delegate perceived the ASQA Report and the ASQA Understanding to be adverse to the plaintiff, and to be credible, relevant, and significant. iii. The delegate did not provide the plaintiff with an opportunity to be heard in relation to the ASQA Report or the ASQA Understanding, and did not inform the plaintiff of the nature or content of that information. iv. The delegate relied on the ASQA Report and the ASQA Understanding to find that the plaintiff had engaged in 'deception'; that the plaintiff had 'deliberately misled' the defendant; and that the plaintiff's responses to the show cause notice were 'deliberately misleading'. v. The delegate acknowledged that her concern in that respect was 'not included as a concern in the [notice to show cause]' issued to the plaintiff. vi. The delegate did not provide the plaintiff with an opportunity to be heard in relation to the findings particularised in paragraph (iv) above, which were adverse conclusions that were not obviously open on the known material. vii. The plaintiff did not deliberately mislead the defendant. viii. In the premises, the delegate failed to observe the requirements of procedural fairness and the decision should be quashed. b. Denial of procedural fairness (alleged tampering with student records): The decision involved jurisdictional error insofar as the delegate failed to observe the requirements of procedural fairness with respect to the allegation of tampering with student records. In particular: i. The delegate found the plaintiff's response to this concern 'to be deliberately unhelpful by seeking to confuse what is meant by the term "original documents" in the [show cause notice]'. ii. The delegate did not provide the plaintiff with an opportunity to be heard in relation to the finding particularised in paragraph (i) above, which was an adverse conclusion that was not obviously open on the known material. iii. The true position was that the delegate's show cause notice, to which the plaintiff was endeavouring to respond, was itself unhelpful and confusing. iv. The plaintiff was not deliberately unhelpful and did not seek to confuse the delegate. v. In the premises, the delegate failed to observe the requirements of procedural fairness and the decision should be quashed. c. Denial of procedural fairness (inadequate show cause notice): The decision involved jurisdictional error insofar as the delegate failed to provide particulars of the alleged 'systemic' non-compliance of the plaintiff sufficient to enable the plaintiff to provide a substantive response to those allegations and to give the plaintiff a fair opportunity to be heard in relation to those allegations. d. Apprehended bias: The decision involved jurisdictional error insofar as a fairminded observer might reasonably apprehend that the delegate might not have brought an impartial mind to her decision in respect of the plaintiff. In particular: i. When considering evidence that was capable of being characterised as 'incorrect', 'misleading', or 'deliberately misleading', the delegate repeatedly found, without hearing from the plaintiff, that the plaintiff 'deliberately' deceived her, and was unable or unwilling to proceed from an assumption of good faith and honesty on the part of the plaintiff. ii. In circumstances where, to the plaintiff's knowledge, no decision to revoke 'all of the approvals for all of STAR's trainers to conduct security training' has been made on the merits. iii. [Not used]. iv. The decision was made in circumstances where Ms Wollaston and/or Ms Stockley had expressed or exchanged the views described in the email from Ms Wollaston to Ms Stockley on 4 August 2021 at 6:25pm. iv(1) The context in which the decision came to be made included the Plaintiff's allegation of apprehended bias in response to the Show Cause Notice and the Delegate's disposition of that allegation in the reasons for the decision. iv(2) The context in which the decision came to be made included the matters alleged in paragraphs 1(a), 1(b), 1(c), 1(f), 3(d), and 3(e) of this summons. v. In the premises, the delegate has evinced a preparedness to disregard the merits of administrative action and the requirements of procedural fairness, and to prejudge administrative action that is or may come before her, where that might lead to an adverse outcome for the plaintiff. vi. In the premises, the decision involved jurisdictional error and should be quashed and should not be considered again by the same delegate. e. Errors of law in applying invalid conditions: The decision involved jurisdictional error and errors of law on the face of the record insofar as the delegate treated as valid certain 'conditions' purportedly imposed on the plaintiff's approval that were, in law, not 'conditions' within the meaning of s 27A of the Act and were invalid and of no legal force or effect. i. The plaintiff repeats and relies upon the allegations pleaded in support of prayers 2 and 3 for relief below. ii. The delegate erred in law in holding that the plaintiff failed to comply with the purported conditions numbered 2, 3, 4, and 7 in the document titled 'NSW Security Licence Course Conditions of Approval' dated July 2020 in circumstances where they were not 'conditions' imposed on the plaintiff's approval within s 27A and were invalid and of no legal force or effect. iii. The delegate erred in law in holding that the plaintiff failed to comply with 'Condition 7A', including as purportedly varied or added to on 25 May 2021 by email from an officer who was not a delegate of the defendant, in circumstances where that was not a 'condition' imposed on the plaintiff's approval within s 27A, either as varied or at all, and was invalid and of no legal force or effect. iv. In the premises, the decision involved jurisdictional error and errors of law on the face of the record and should be quashed. f. Errors of law in misconstruing valid conditions: The decision involved jurisdictional error and errors of law on the face of the record insofar as the delegate misconstrued and misapplied the valid conditions on the approval: i. Condition 3: The delegate erred in law in concluding that the plaintiff had failed to comply with condition 3 because the plaintiff had failed to provide training 'in accordance with the SLED regulatory requirements', relevantly identified by reference to 'simulations' and other guidance described in certain 'assessor guides', on the basis that certain observed activities appeared to not involve a 'bystander'; or not involve written briefing notes; or not involve the numerical marking of briefing, contemporaneous, and debriefing notes (as opposed to another form of assessment); or a trainer appeared to be under the weather. ii. Condition 7: The delegate erred in law in treating each instance of noncompliance by an individual trainer with any condition in the document titled 'NSW Security Licence Course Conditions of Approval' dated July 2020 as non-compliance by the plaintiff as an organisation with condition 7. iii. Condition 7: The delegate erred in law in finding, in respect of Mr Bendt and Mr Yates, that '[t]he fact that STAR no longer uses these two Trainers is not relevant, as SLED's concerns relate to STAR's ability to ensure that their Approved Trainers comply with the Conditions of Approval', whereas the plaintiff's decision to cease using those trainers was a lawful means of complying with condition 7 and could not lawfully be viewed as irrelevant. iv. Condition 7A: The delegate erred in law in construing condition 7A as requiring the nominated person to determine, and determine correctly, whether each Approved Trainer had strictly complied with all of the lawful conditions in the document titled 'NSW Security Licence Course Conditions of Approval' dated July 2020, whereas condition 7A relevantly required no more than that the nominated person 'complete a direct observation and supervision report for each Approved Trainer regarding their delivery and assessment of each practical simulation contained with the 1AC Security Licence Course' and provide that report to SLED. v. In the premises, the decision involved jurisdictional error and errors of law on the face of the record and should be quashed. Declaratory relief in respect of invalid conditions 2. Pursuant to s 69 of the Supreme Court Act 1970 (NSW), declare that the purported conditions numbered 2, 3, 4, 7, 9, 10, 11, 12, and 17 in the document titled 'NSW Security Licence Course Conditions of Approval' dated July 2020, purportedly imposed as 'conditions' on the plaintiff's approval under s 27A of the Security Industry Act 1997 (NSW) by a delegate of the Commissioner, were not 'conditions' imposed on the plaintiff's approval within the meaning of that section and are invalid and of no legal force or effect. Particulars a. The power given to the defendant by s 27A of the Act to impose 'conditions' on an organisation's approval is impliedly limited by the following requirements: i. the conditions must have certainty of expression and certainty in operation; ii. the conditions must specify what the organisation is to do or refrain from doing in a way that is sufficient to enable the organisation to know whether particular conduct will imperil the approval or not, and to make clear to the Commissioner or delegate what tests she is to apply such that conclusions as to compliance or non-compliance are not vitiated by error of law; iii. the conditions must proceed by reference to objective standards and criteria such that the fact of compliance or non-compliance is clearly ascertainable without opinion or the exercise of judgment or discretion; iv. the conditions must be capable of enforcement by a court, including in a criminal prosecution for non-compliance under s 27A(3); v. the conditions must not vary or depart from the provisions of the Act; and vi. the conditions must be legally reasonable. b. The following purported conditions in the document titled 'NSW Security Licence Course Conditions of Approval' do not satisfy the requirements pleaded above and at least to that extent are invalid and of no legal force or effect: i. 'Condition No. 2' insofar as it provides that the plaintiff 'must ... comply with the Code of Conduct contained in Chapter 2'; ii. 'Condition No. 3' insofar as it provides that training, assessment or instruction 'must be conducted ... in accordance with the SLED regulatory requirements', and in particular, each 'Assessor Guide'; iii. 'Condition No. 4' insofar as it provides that the plaintiff 'must comply with the VET Quality Framework (see Chapter 4)', and in particular, the 'Principles of Assessment' described in clause 1.8 of the Standards for Registered Training Organisations 2015 (Cth); iv. 'Condition No. 7' insofar as it provides that the plaintiff 'must ensure that all Approved Trainers ... comply with: these Conditions of Approval, the Code of Conduct in Chapter 2, requirements for Approved Trainers contained in Chapter 5, and SLC delivery requirements in Chapter 9'; and v. So much of the conditions (including 7, 9, 10, 11, 12, and 17) as purport to establish, regulate, and require the plaintiff to comply with, the non-statutory application process described in Chapters 8 and 9 for seeking the further exercise by the Commissioner of an undefined discretion to permit or refuse to permit the plaintiff to provide training, assessment and instruction of a kind identified in Chapter 3 to particular cohorts of students on particular dates. c. Pursuant to s 48(2)(b) of the Act, the Governor may make regulations for 'the approval of training courses for persons in the security industry, and the accreditation of trainers and instructors to conduct security industry competency training', and no such regulations have been made. 3. Pursuant to s 69 of the Supreme Court Act 1970 (NSW), declare that 'Condition 7A' purportedly imposed on the plaintiff's approval under s 27A of the Security Industry Act 1997 (NSW) by a delegate of the Commissioner in May 2021 was not a 'condition' imposed on the plaintiff's approval within the meaning of that section and is invalid and of no legal force or effect. Particulars a. The plaintiff repeats and relies on the statutory limits on the power to impose 'conditions' under s 27A particularised in paragraph 2(a) above. b. The text of 'Condition 7A' was expressed at a level of generality that was too high and too uncertain to satisfy the statutory limits. c. The text of 'Condition 7A' provided, in terms, that the action required of the plaintiff for compliance 'is not limited to' the actions specified in the condition. d. On or about 25 May 2021, an officer who was not a delegate of the defendant under s 27A purported to vary or add to the purported condition by emailing 'further instruction' to the plaintiff as to what the plaintiff must do to comply. e. The delegate erroneously concluded: 'In the event that STAR had any doubts as to the scope and effect of Condition 7A it was its obligation to seek clarification to ensure it understood the regulator's requirements.' f. In the premises, 'Condition 7A' was not a 'condition' imposed on the plaintiff's approval within s 27A and is invalid and of no legal force or effect. Mandamus in respect of the defendant's list of approved organisations 4. Pursuant to s 69 of the Supreme Court Act 1970 (NSW) and clause 43(1) of the Security Industry Regulation 2016 (NSW), order that the defendant cause the plaintiff's name to be restored to the list of approved organisations maintained and published by the defendant for the purposes of that clause forthwith. Particulars a. Clause 43 of the Security Industry Regulation 2016 (NSW) imposes a duty on the defendant to publish on the website maintained by the Security Licensing and Enforcement Directorate a list of persons or organisations approved from time to time by the Commissioner for the purposes of s 27A of the Act. b. By reason of prayer 1, the plaintiff is an organisation approved by the Commissioner for the purposes of s 27A of the Act. Declaratory relief in respect of the plaintiff's training, assessment and instruction 5. Pursuant to s 69 of the Supreme Court Act 1970 (NSW), declare that the plaintiff is authorised under the Security Industry Act 1997 (NSW) to provide persons to carry on the security activities of providing training or instruction in relation to, and assessing another person's training, instruction or competencies in relation to, acting as an unarmed guard or crowd controller. Particulars a. The plaintiff holds a master licence of class MC within the meaning of s 10(1)(c) of the Act, which has not been suspended or revoked under ss 25 or 26. b. As the holder of a master licence, the plaintiff is authorised to provide persons to carry on security activities pursuant to ss 4(1) and 7(1) of the Act. c. Security activities referred to in s 4(1) include 'providing persons to carry on any security activity' (s 4(1)(m)) including: i. 'providing training or instruction in relation to' (s 4(1)(j)); and/or ii. 'assessing another person's training, instruction or competencies in relation to' (s 4(1)(k)), acting as an unarmed guard or crowd controller (s 4(1)(a)-(c)). 6. Pursuant to s 69 of the Supreme Court Act 1970 (NSW), declare that each of the following courses: a. 'CPP20218 Certificate II in Security Operations'; and b. 'NSW Security Licence Course 1A Unarmed Guard and 1C Crowd Control Security Officer' identified in Chapter 3 of the document titled 'NSW Security Licence Course Conditions of Approval' dated July 2020 and the corresponding 'SLED Approved Trainer Assessment and Marking Guide' dated July 2020, is: c. 'training, assessment and instruction that is approved' for class 1A and 1C licences within the meaning of s 15(1)(d) of the Security Industry Act 1997 (NSW); and d. 'approved, training, assessment and instruction' for class 1A and 1C licences within the meaning of ss 17(7), 21A(1), and 23E of the Security Industry Act 1997 (NSW). Particulars e. The defendant's approval of those courses as training, assessment and instruction for class 1A and 1C licences is to be inferred from: i. the terms of the defendant's documents identified in paragraph (b) above; and/or ii. the defendant's past decisions to approve the plaintiff providing those courses for class 1A and 1C licences from time to time. 7. Pursuant to s 69 of the Supreme Court Act 1970 (NSW), declare that it is not 'false, misleading or deceptive' or a 'wilful concealment of a material fact' within the meaning of s 33(1) of the Security Industry Act 1997 (NSW) for the plaintiff to represent that it provides training, assessment and instruction that is approved by the defendant for class 1A and 1C licences under the Security Industry Act 1997 (NSW). 8. Costs. 9. Such further order or other relief as the Court considers appropriate."
Thus, it can be seen that Star initially sought the following relief under ss 69 and 75 of the Supreme Court Act: 1. An order quashing the revocation decision. 2. A declaration that conditions 2, 3, 4, 7, 9, 10, 11, 12 and 17 in the document entitled "NSW Security Licence Course Conditions of Approval" dated July 2020 purportedly imposing conditions on Star's s 27A approval and made by a delegate of the Commissioner were not conditions, being invalid and of no legal force or effect. A similar challenge was brought to condition 7A, purportedly imposed at a later time. 3. An order that the Commissioner restore Star's name to the list of approved organisations, maintained and published by the Commissioner under cl 43(1) of the Security Industry Regulation 2016 (NSW). 4. A declaration that Star is authorised to provide training, assessment and instruction in relation to acting as an unarmed guard or crowd controller for the purposes of the Act, and other declaratory relief.

[12]

Primary complaint: Denial of procedural fairness

Despite the multiplicity of bases upon which Star sought to impugn the revocation decision, the primary complaint was of a denial of procedural fairness in three respects: 1. In making the revocation decision the delegate obtained a copy of a report from ASQA without giving notice of that fact to Star and then used that report to make adverse findings of deliberate deception against Star without affording them the opportunity to be heard; 2. Without notice being provided to Star, the delegate made findings that Star had responded to the NSC by being "deliberately unhelpful" in its submissions; and 3. The delegate failed to provide sufficient particulars in the NSC of Star's alleged "systemic" non-compliance to enable it to be properly heard on that issue thus denying them procedural fairness.
Of these three separate complaints, the Commissioner accepted that the delegate had obtained a copy of the ASQA report and relied on it without advising Star of that fact but submitted there was no requirement to do so in the circumstances and, even if there was, any breach of procedural fairness was not material. The Commissioner denied that there had been any denial of procedural fairness in relation to the second and third broad complaints.
At the beginning of the hearing, I enquired of counsel whether if I was satisfied that there had been any material denial of procedural fairness that would be a sufficient basis to quash the decision. Senior counsel for the Commissioner accepted that if I was satisfied there was a material denial of procedural fairness there would be "some force in simply remitting without deciding the other matters". He did not urge that course as his position was that all grounds of review would be rejected on their merits, but he accepted that it would be open to make the decision on particular grounds. Mr King had no objection to the course either. 1
Given the significance of my finding on procedural unfairness, I propose to consider that question first.

[14]

Key documents and evidence on the issue of procedural fairness

As stated above, Star became an approved organisation under the Act in December 2014, this approval being subject to certain conditions.
Although there initially do not appear to have been any difficulties with Star's compliance, from 2018 SLED perceived there to be non-compliance with terms of their approval and from 2020 SLED issued four NSCs to Star (or its trainers) under the Act giving notice that consideration was being given to revocation of various approvals.
First, on 8 April 2020, Star was provided with an NSC indicating that consideration was being given to revoking the approval of approved trainer Lukas Bendt. Star provided submissions and the approval for Mr Bendt to train was revoked on 9 April 2020.
Secondly, on 23 December 2020, SLED issued a further NSC to Star as to why its approval should not be revoked. Star provided submissions in response on 14 January 2021. On 13 May 2021, SLED decided not to revoke Star's approval, but imposed a further condition on Star's approval in relation to compliance monitoring (condition 7A).
Thirdly, on 30 July 2021, after a show cause process, a decision was made by SLED to revoke the approval of one of Star's trainers, Stephen Yates. SLED also advised Star that two of its courses were not approved. On 6 August 2021, Star brought an urgent application in this court seeking review of the decision in relation to the two courses; Button J dismissed the application that day.
Between 28 July and 5 August 2021, ASQA conducted an audit of Star. I have summarised some of the evidence as to what was discussed at that audit below.
The fourth and final NSC, the subject of these proceedings for judicial review, was dated 11 August 2021. Star's submissions in response were dated 24 August 2021 and the revocation decision was made on 10 September 2021. On 13 September 2021, the Commissioner confirmed that an internal review of the revocation would not be granted.
The three key documents relevant to the alleged breach of procedural fairness were: the NSC issued on 11 August 2021, Star's response to the NSC; and the revocation decision and schedule of reasons.

[15]

The notice to show cause

In the NSC dated 11 August 2021, Ms Stockley stated that: "As a result of repeated non-compliance by STAR with its Conditions of Approval and concerns about STAR's ability to comply with its Conditions of Approval in the future, I am considering revoking STAR's approval pursuant to section 27(2)(b) of the Act."
Ms Stockley indicated that the particular issues of concern were set out in the schedule of reasons and that Star had an opportunity to provide written submissions in response to the NSC.
In section A of the schedule of reasons, Ms Stockley set out the details of the three previous NSCs issued to Star and its trainers, as outlined above. Section B read as follows: "There is a lengthy history of warnings, cautions and the issuing of infringement notices to STAR and its Approved Trainers. For the purpose of considering whether STAR's approval should be revoked, consideration is confined to STAR's more recent history between 2018 and 2021. Particulars of these actions, including copies of Official Cautions and the recent Penalty Infringement Notice issued, are at Annexure 16."
Section C was entitled, "Failure to implement proposed Reforms/ongoing Breach of Conditions" and raised the allegation that Star had exhibited ongoing non-compliance with conditions 3, 4 and 7. Condition 3 provided that specified training, assessment or instruction must be carried out "in accordance with SLED regulatory requirements"; condition 4 provided that "[t]he Approved Organisation must comply with the VET Quality Framework"; and condition 7 specified that Star must ensure that its trainers are aware of and compliant with the conditions of approval and other regulatory requirements. Ms Stockley noted that despite Star's assurances given after the 23 December 2020 NSC, "they have been ineffective in ensuring that STAR's Approved Trainers comply with the Conditions of Approval, and therefore STAR has failed to comply with Condition 7". She further stated: "STAR's non-compliance is serious and systemic and, due to the fact that previous undertakings by STAR have been unsuccessful in ensuring compliance, there is a concern as to whether STAR is able to prevent future and on-going non-compliance as required by Condition 7." (Emphasis added.)
Section D related to concerns in relation to Star's compliance with condition 7A, imposed in May 2021, again following the 23 December 2020 NSC. This condition provided, inter alia: "The Nominated Person, Compliance Manager or Compliance Consultant must complete a direct observation and supervision report for each Approved Trainer regarding their delivery and assessment of each practical simulation contained within the 1AC Security Licence Course ('SLC'). The supervision report must be provided to SLED for review before each Approved Trainer can be approved as a lead trainer/assessor for subsequent SLCs delivered on behalf of Star."
By way of background, following the imposition of condition 7A, Star had engaged Andrew Doslea in the capacity of "compliance manager" and Mr Doslea produced "trainer audit reports" in relation to three of Star's approved trainers: Shane Smith, John Stoodley and Stephen Yates.
The report in relation to Mr Yates was provided by Star to SLED on 8 June 2021; Mr Doslea certified that Mr Yates "complied with the delivery and assessment requirements for the relevant [Security Licence Course ('SLC')] assessments". Attached to the report in relation to Mr Yates were "candidate workbooks" and portfolios of evidence for the following students: Soeters, Ali and Jamal.
Ms Stockley noted problems with the "observation checklists" completed by Mr Yates in respect of these three students and the assessment outcomes generally. She also referred to an interview with Mr Malik on 24 June 2021 conducted during a SLED audit; one of the concerns raised was that "Mr Malik demonstrates a lack of regard for his obligation to ensure that SLED SLC Assessments are carried out in accordance with assessment instructions". Mr Doslea was also interviewed by SLED on this same day and, in light of this, Ms Stockley raised a concern in the NSC that he "does not have the correct understanding of the Assessment Instructions".
Ms Stockley went on to state this in the NSC: "The documents furnished by STAR in response to Condition 7A and the responses provided by Mr Malik and Mr Doslea at interview are also evidence that, to the extent that any validation and moderation frameworks were in place at STAR, they have been ineffective in ensuring consistency in assessment judgments made by STAR's Approved Trainers."
A further trainer audit report in respect of Mr Yates was provided to SLED by Star on 11 June 2021. It attached candidate workbooks and portfolios of evidence for the same three students (Soeters, Ali and Jamal).

[16]

Section E: Tampering with student records

Section E of the NSC was headed "Tampering with Student Records". The events described in this section of the NSC were the subject of lengthy evidence at the hearing. The tampering allegations in the NSC can be briefly summarised as follows.
Condition 2 of Star's conditions of approval provided, inter alia, that it must "comply with the Code of Conduct contained in Chapter 2 of this document". Section 2.9(b) of the Code of Conduct states: "When providing SLED with information, Approved Organisations and Trainers must not: provide misleading or false information deliberately omit relevant information falsify records or other documents."
On 16 June 2021, SLED auditors attended Star's Liverpool campus and sought to obtain original records in relation to 18 students, including candidate workbooks containing observation checklists. I note in passing that the powers of SLED auditors are contained, inter alia, in s 39K of the Act. The candidate workbooks were provided to the SLED auditors, who, during the initial on-site inspection, observed that the observation checklists for all 18 students in the particular course were unmarked for a range of assessment criteria. Despite this, Mr Yates had recorded the result of "satisfactory" for the relevant tasks. Following this initial inspection, the workbooks were returned as Mr Yates was undertaking further training that afternoon and for photocopying.
When the 18 workbooks were returned to the auditors later that day after training, "it was observed that fourteen of the eighteen original Candidate Workbooks had been marked with a red ink tick against the previously unmarked Assessment Criteria". Further: "At no time did Mr Yates, Mr Malik, Mr Doslea, Ms Dionela or any other members of staff of STAR inform SLED auditors that the original Observation Checklists had been altered between when the SLED auditors first obtained the documents under their statutory powers on 16 June 2021 and the return of those documents to them later that day."
A further concern was noted in relation to the records of students Soeters, Ali and Jamal: namely, that the observation checklists initially obtained on 16 June 2021 had an absence of certain ticks which were present on the equivalent records provided to SLED on 8 June 2021; and a comparison of the observation checklists provided to SLED on 8 and 11 June 2021 compared with those obtained on 16 June 2021 revealed that certain ticks against the same items were "different in shape and position".
Mr Malik provided an explanation for the changes. When asked about them in the audit interview on 24 June 2021 he explained that on 16 June 2021 he retrieved the workbooks back from SLED auditors to enable Mr Yates to carry out further student assessments and told Mr Yates to "check the documents" and/or "start the role-plays".
In the NSC, Ms Stockley set out the following "concerns" about this: "1. The copies of the Observation Checklists of SOETERS, ALI and JAMAL for Assessment tasks 3, 4, 5, 6, 11, 12, 13 and 14 submitted by STAR with the Trainer Audit Report for Mr Yates on 8 and 11 June 2021 were not true and correct copies of the original documents. The submission of such copies may be evidence of an attempt by Star to mislead and deceive SLED. 2. On 16 June 2021, between the time that SLED auditors took initial possession of the original Candidate Workbooks for all students and the time when SLED auditors took final possession of the original documents, STAR personnel altered the original Observation Checklists for fourteen of the eighteen students by inserting ticks against Assessment Criteria that had not been marked (as referred to in Table 1). The documents were obtained by SLED auditors pursuant to their statutory enforcement powers and should not have been altered or amended after those powers were exercised. The tampering with original student documents may be evidence of an attempt by STAR to mislead and deceive SLED. 3. As the ticks on the Observation Checklists of the copies of Assessment Tasks 3, 4, 5, 6, 11, 12, 13 and 14 provided on 8 and 11 June 2021 (students SOETERS, ALI and JAMAL) are different to the ticks appearing on the original Observation Checklists for Assessment Tasks 3, 4, 5, 6, 11, 12, 13 and 14 obtained by SLED auditors on 16 June 2021 for those three students (post-tampering by STAR personnel), this may be evidence that STAR has twice attempted to mislead and deceive SLED in relation to these three students. 4. As the original Observation Checklists for the eighteen students of SLC042 had not been marked as satisfactory (by ticking all of the Assessment Criteria), none of the eighteen students should have been provided with an overall assessment result of 'Satisfactory' by Mr Yates." (Emphasis added.)

[18]

Star's submissions in response to the NSC

On 24 August 2021, Timothy Coleman, solicitor for Star, provided SLED with written submissions as invited by SLED. Attached to the submissions was a table of 16 pages addressing each of the "concerns" set out by SLED in the NSC. Star's position was that: "… it is a capable and experienced training organisation and has delivered its courses to a high standard over a long period of time. Likewise, over a long period of time, STAR's management and trainers have worked harmoniously with SLED to comply with their regulatory conditions of approval."
Importantly, at [6]-[8] of Star's submissions, it stated: "Independently of meeting SLED's requirements, STAR are required to satisfy the regulatory requirements of Australian Skills Quality Authority (ASQA) STAR notes that SLED had requested ASQA to undertake an audit on STAR in or around April 2021, despite the fact that the next scheduled ASQA audit was not supposed to occur until 2024. ASQA's audit on STAR on 28 and 28 July 2021 was rigorous and thorough … Following ASQA's audit, ASQA informed STAR that they are fully compliant with ASQA's requirements and have found no material non compliances. STAR have informed SLED of the outcome of ASQA's audit. The ASQA audit does not indicate that there is a basis for the concerns expressed by SLED." (Emphasis added.)
Star submitted its view that the heavy-handed oversight by SLED since June 2020 gave rise to a "risk of apprehended bias". It was around this time that Star and one of its trainers (Mr Yates) made a complaint against SLED and one of its auditors in particular. Star noted that it has held a "training organisation licence since 2007" and that it has had "until quite recent times, an uncontroversial history and a good and co-operative working relationship with SLED officers. SLED have not alleged until recently that STAR, as an organisation, does not have the capacity to deliver compliant training". Since the complaint against SLED, Star submitted that SLED have: "12.1 issued a show cause notice to STAR on 23 December 2020; 12.2 revoked the accreditation of two of STAR's trainers, Mr Bendt and Mr Yates; 12.3 issued further non-compliance notices and cautions to STAR and Mr Smith; 12.4 engaged in an extremely high level of auditing. By way of example, between 30 June 2020 and 15 July 2021 alone, SLED have conducted a total of 21 Audits that have been reported by SLED, 5 interviews with STAR's staff, and a number of further audits which have been conducted but not reported on by SLED; 12.5 refused to issue course approval for two of SLEDs courses, even though the nominated trainers for those two courses remain accredited (John Stoodley and Shane Smith), and in the circumstances that SLED have confirmed that the performance of both trainers is satisfactory; and 12.6 issued a further show cause notice to STAR on 11 August 2021 …"
Star submitted that the issues raised by SLED in the 23 December 2020 NSC had been addressed and that "SLED should treat the past non compliances as resolved". Star set out the measures that it had implemented in response to the 23 December 2020 show cause process and rejected SLED's assertion in the most recent NSC that such measures have been "ineffective". And further: "STAR have put in place and implemented all of the strategies agreed, and STAR say effective compliance with conditions 7 and 7A has been achieved. It is apparent from the following section addressing the complaints made against STAR's trainers, that at the time of the issue of the August 2021 Show Cause Notice, the performance of STAR's trainers was acceptable. In particular, SLED have assessed the performance of Mr Stoodley and Mr Smith as compliant."
Star then addressed the "complaints made in respect of the performance of STAR's trainers" and in particular challenged the indirect criticism of trainers Mr Smith and Mr Stoodley through the perceived unreliability in Mr Doslea's practices. At [30], Star submitted that: "Complaints in SLED's August 2021 Show Cause Notice can be divided into a number of different categories, including: 30.1 Complaints that go to the quality of the training provided to STAR's students; 30.2 Complaints relating to STAR's compliance with administrative procedures; and 30.3 Complaints relating to the honesty and integrity of STAR as a training organisation." (Emphasis added.)
Star submitted that "[t]here appears to be no complaints made by SLED that relate to the first category", and that any such complaints are "historical". As for the second category, Star submitted that "administrative" non-compliance related to "failing to properly sign and date student attendance sheets, ensuring that signatures and ticks are recorded in specific areas on documents and producing records relating to corrections made". Star did not deny that some non-compliance had occurred, but submitted that it was a result of oversight, was being managed and minimised, was a series of "one-offs" and, "the fact that non compliances have occurred is not evidence in itself that the training has not been properly performed or … of dishonesty".
As for the third category, Star submitted: "SLED have not made direct allegations that Mr Malik or STAR as an organisation have engaged in dishonest practices. To the extent those allegations are not directly made but are made by way of innuendo those allegations are not made out." (Emphasis added.)
Star then addressed what in its view were the "remaining allegations": "concerns relating to STAR's reports under condition 7A"; "tampering with student records"; and "methodology used for the preparation of trainer audit reports".
In relation to condition 7A, Star submitted that there appeared to have been a misunderstanding as to what the condition required of the compliance manager, Mr Doslea; and "[n]otwithstanding the parties' different interpretations, Mr Doslea has confirmed that he will as part of his compliance function satisfy himself that trainers are correctly marking the student assessments".
In relation to the tampering issue, Star submitted that SLED's allegations were "unclear", but nonetheless attempted to respond to four discrete allegations. 1. As for the allegation that the copies of the observation checklist of the three students (Soeters, Ali, Jamal) attached to the trainer audit report for Mr Yates and provided to SLED on 8 and 11 June 2021 "were not true and correct copies of the original documents", Star rejected this. Star submitted that the copies provided to SLED represented the state of those documents at the time, and further, prior to them being provided, copies were made and "marked up to date by Mr Yates", while the original versions were not. "This resulted in two versions of the documents being created and used." 2. As for the allegation that between the time SLED took "initial" and "final" possession of the candidate workbooks on 16 June 2021 alterations had been made, Star submitted that a number of workbooks were given back to Star after "initial" possession and assessment and marking of students continued. Star submitted: "There is no explanation given in the [NSC] as to why STAR may have intended to mislead or deceive SLED". 3. As for the allegation that the different versions of the Soeters/Ali/Jamal checklists had tick marks in different places/styles, which "may be evidence that STAR were attempting to mislead or deceive SLED a second time", again Star submitted that SLED had not explained "how or why" this deception is said to have occurred, and that the confusion arose due to copies being created of the relevant documents, marked at different times. 4. Finally, as for the allegation that as the "original" observation checklists of the 18 students had not been properly completed, Mr Yates should not have recorded an overall grade of "satisfactory", Star assumed that the word "original" was used to identify the documents provided to SLED on 8 and 11 June 2021 and submitted that the relevant course was completed progressively by students over a three week period who were assessed accordingly. In hindsight, it would appear that SLED used the word "original" to refer to "initial possession" on 16 June.
Finally, Star acknowledged that it had directed Mr Doslea to comply with SLED's interpretation of condition 7A in relation to the trainer audit reports.
Star submitted in conclusion: "The bulk of the complaints raised in the August 2021 Show Cause Notice are one off non compliances which are administrative in nature. The bulk of those complaints were directed to Mr Yates who is no longer a Star trainer. All of STAR's current trainers are accredited and the position appears to be that SLED have confirmed that all of Star's current trainers are competent and compliant. To the extent that SLED question STAR's willingness to comply with SLED's requirements, STAR's position is that STAR: 68.1 recognises, understand and respects the statutory function and powers of SLED; 68.2 will comply with the conditions imposed by SLED; and 68.3 will work co-operatively with SLED. STAR does not accept that the non compliances identified in the August 2021 Show Cause Notice are made out or are sufficiently material to justify the revocation of STAR's approvals. However STAR do acknowledge that ongoing and improved dialogue with SLED officers would assist in clarifying SLED's requirements." ASQA inquiries: Agreed facts
As stated above, independently of meeting SLED's requirements, Star was required to satisfy the regulatory requirements of ASQA as it was an RTO. ASQA undertook an audit of Star on 28 and 29 July 2021.
The Commissioner accepted that after receiving the above response from Star, the subdelegate of SLED, Ms Stockley, noted Star's assertions at [70] above, inter alia, that ASQA had "informed STAR that they are fully compliant with ASQA's requirements and have found no material non-compliances and that "the ASQA audit does not indicate that there is a basis for the concerns expressed by SLED." In response, Ms Stockley entered into email correspondence with ASQA staff and obtained a copy of the ASQA report. Having read it, she did not accept that Star's categorisation of what ASQA had found in their recent audit of Star was accurate. She did not go back to Star to allow it the opportunity to be heard on that topic. Rather, she proceeded to revoke their authority without hearing from them further.
I will set out the terms of the Commissioner's admissions and summarise the relevant evidence on this issue further below.

[21]

Misleading information and deception by STAR

The reasons continued under this second heading: "2. Misleading information and deception by STAR As particularised in Attachment 1 and Attachment 2, I have found that STAR, through the conduct of its training staff and its Nominated Person Mr Malik, have engaged in conduct that has been intended to mislead and deceive SLED. This has occurred through: the provision of copies of Candidate Workbooks as part of the Trainer Audit Reports made on 8 and 11 June 2021 that had been altered and did not reflect the Approved Trainer's assessments contained in the originals of these documents the authorised and undisclosed alterations made to Candidate Workbooks on 16 June 2021, which had been obtained by SLED auditors pursuant to their authority under s.39K Security Industry Act 1997. The above conduct by STAR and its personnel occurred following SLED issuing a Penalty Infringement Notice to STAR for a breach of Condition 2 (see pages 15-16, Annexure reference 16 of the NSC)." (Emphasis added.)
In the attachment 1 to the schedule of reasons, SLED dealt with Star's submissions in relation to tampering with student records at [49]-[53] and made the following conclusion: "I view STAR's response in relation to this matter to be deliberately unhelpful by seeking to confuse what is meant by the term 'original documents' in the NSWC. To the extent that there is any confusion (although the same confusion does not appear to exist in the Schedule of Responses from STAR), I note that STAR did not make any attempts to clarify this term with SLED in order to properly respond to the NSC." (Emphasis added.)
After making this finding about the alleged alteration of the candidate workbooks, Ms Stockley went on to make the following additional finding under the "misleading information and deception" heading which forms the basis of the complaint of procedural fairness: "Although not included as a concern in the NSC, it is noted that STAR's submission contains further information which is incorrect and misleading. The assertion that SLED caused the recent audit by ASQA to be conducted is incorrect. The assertion that ASQA had indicated to STAR at the conclusion of its audit that STAR was fully compliant with all of ASQA's requirements is incorrect. I have found this claim to be deliberately misleading." (Emphasis added.)

[23]

The Commissioner's admitted facts

The Commissioner made the following admissions in its Response to Notice to Admit Facts dated 21 December 2021.
Star relied upon these admissions to submit that the court would find that there had been a breach of procedural fairness in relation to the ASQA documents. The Commissioner disputed that the admitted facts went that far. Given the lack of agreement as to precisely what was and was not agreed between the parties on this issue it is necessary to extract the relevant portions of the Notice to Admit Facts and replies in full. The "admissions" relied upon by Star and the responses were in these terms: 1. "In making the revocation decision, the decision-maker had regard to the ASQA Report." This fact was admitted with the Commissioner further stating that "the ASQA Report was only considered to the extent that it showed that the content of the Report was not consistent with the representations made about the outcome of the audit in [Star's] response to the notice to show cause. The ASQA Report was only obtained to verify the representations on this by [Star] in its Response to the Notice". [1] 2. "In making the revocation decision, the decision-maker proceeded on the basis that the ASQA Report was credible, relevant, and significant to [Star]." This fact was admitted but only to the extent that contents of the ASQA report was credible, relevant and significant to determining the accuracy of comments made by [Star] in its Response to the Notice". [2] 3. "In making the revocation decision, the decision-maker did not provide [Star] with an opportunity to be heard in relation to the ASQA Report." The Commissioner admitted this fact stating that "no such opportunity was required." [3] 4. "In making the revocation decision, the decision-maker did not provide [Star] with an opportunity to be heard in relation to the conclusion that [Star]'s 'submission in paragraph 8 of its covering letter and Item 2 on its Schedule of responses was 'deliberately misleading'." The Commissioner admitted this fact stating that "no such opportunity was required". [4] 5. "In making the revocation decision, the decision-maker did not provide [Star] with an opportunity to be heard in relation to the conclusion that [Star's] 'submission relating to the outcome of the ASQA audit' was 'deliberately misleading'." The Commissioner admitted this fact stating that "no such opportunity was required". [5] 6. "In making the revocation decision, the decision-maker had regard to information provided by ASQA in response to '[e]nquiries made with ASQA in relation to the assertion made in paragraph 6'." The Commissioner admitted this fact. [6] 7. "In making the revocation decision, the decision-maker had regard to information provided by ASQA to the effect that [Star] 'was notified verbally by ASQA of the preliminary audit findings during their closing meeting on 5 August 2021'." [7] The Commissioner admitted this fact. 8. "In making the revocation decision, the decision-maker had regard to information to the following effect: 'Representatives from STAR were verbally advised by the ASQA audit team on 5 August 2021 that there were critical non-compliance issues identified. This included non-compliance with Standard 1.8 in relation to the qualification 'CPP20218-Certificate II in Security Operations' (the qualification that relates to the Security Licence Course)." The Commissioner admitted this fact "but only to the extent that ASQA Report identified that [Star] was not compliant with Clause 1.8 of the Standard RTOs 2015 in relation to a number of qualifications on scope (as referred to at paragraph 8 of Annexure 1 to the revocation decision), and that that information was materially different to the response to the Notice regarding the outcome of the audit. The [Commissioner] also notes that the quote in paragraph 11 of the Notice to Admit Facts does not reflect the terms of the revocation decision." [8] 9. "In making the revocation decision, the decision-maker had regard to information to the following effect: 'STAR was also verbally advised on 5 August 2021 by the ASQA audit team they had identified extensive critical non-compliance with the qualification 'HLTAID003 - Provide first aid' (which is a requirement for all security licence applications)." The Commissioner admitted this fact "but only to the extent that ASQA Report identified that [Star] was not compliant with Clause 1.8 of the Standards for RTOs 2015 in relation to a number of qualifications on scope (as referred to in paragraph 8 of Annexure 1 to the revocation decision), and that that information was materially different to the Response to the Notice regarding the outcome of the audit. The [Commissioner] also notes that the quote in paragraph 1 of the Notice to Admit Facts does not reflect the terms of the revocation decision." [9] 10. "In making the revocation decision, the decision-maker proceeded on the basis that the information referred to in paragraphs 9, 10, 11 and 12 may lead ASQA to terminate STAR's approval as a Registered Training Organisation (RTO)." The Commissioner admitted this fact stating "The [Commissioner] was aware that ASQA Report was preliminary and it was possible that no further action would be taken by ASQA. The [Commissioner] also notes that the quote in paragraphs 11 and 12 of the Notice to Admit Facts does not reflect the terms of the revocation decision." [10] 11. "In making the revocation decision, the decision-maker proceeded on the basis that the information referred to in paragraphs 9, 10, 11 and 12 above was credible, relevant, and significant." The Commissioner admitted this fact "but only to the extent that the information referred to in paragraphs 9, 10, 11 and 12 above was credible, relevant, and significant to verifying the representations on this issue by [Star] in its Response to the Notice. The [Commissioner] also notes that the quote in paragraphs 11 and 12 of the Notice to Admit Facts does not reflect the terms of the revocation decision." [11] 12. "In making the revocation decision, the decision-maker proceeded on the basis that the information referred to in paragraphs 9, 10, 11 and 12 above was adverse to [Star]." The Commissioner admitted this fact "but only to the extent that the information provided by ASQA was materially different to [Star]'s representations in its Response to the Notice. The [Commissioner] also notes that the quote in paragraphs 11 and 12 of the Notice to Admit Facts does not reflect the terms of the revocation decision." [12] 13. "In making the revocation decision, the decision-maker did not provide [Star] with an opportunity to be heard in relation to the information referred to in paragraphs 9, 10, 11, 12 and 13 above." The Commissioner admitted this fact stating that "In making the ASQA inquiries the [Commissioner] was having regard to matters which [Star] raised itself in the Response to the Notice, which had not previously been raised by [Star]. The [Commissioner] also notes that the quote in paragraphs 11 and 12 of the Notice to Admit Facts does not reflect the terms of the revocation decision." [13]

[24]

Evidence adduced by the parties on the question of materiality

It was common ground that in Star's response to the NSC it submitted that following the ASQA audit on 28 and 28 July 2021 ASQA informed Stat that: 1. That Star was "fully compliant" with ASQA's requirements; 2. That ASQA found no material non compliances; and 3. The ASQA audit does not indicate that there is a basis for the concerns expressed by SLED.
It is also common ground that SLED not only disagreed with those assertions but made a finding they were deliberately misleading without providing any notice to Star that they proposed to make such a finding.
The parties agreed that the Commissioner was required to afford procedural fairness to Star as an implied condition of the exercise of its statutory power under the Act; it was not suggested that this presumption did not operate due to a clearly indicated contrary intention in the Act: Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; [2016] HCA 29 at [75]. Given this agreement, I do not consider it necessary to set out the relevant provisions of the Act.
It was also accepted that, subject to materiality, if the court was satisfied there had been a failure to afford procedural fairness to Star then that would constitute jurisdictional error: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at 569 [60], citing Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at 89 [5], 91-101 [17]-[42], 143 [170].
Although these principles were agreed upon, the Commissioner did not accept that there had been any breach of procedural fairness in relation to the ASQA material for reasons I will address below. The Commissioner further submitted that even if the court was satisfied that there had been such a breach it was not material in the circumstances. The Commissioner adduced evidence to establish that position which was contested by Star. I propose to summarise some of that evidence below but before I do it is relevant to note what the parties agreed was the relevant test for materiality.
The parties agreed that the relevant test for materiality was set out by the majority in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441("MZAPC") at [2] and Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 ("SZMTA") at [48]: Star had to establish a "realistic possibility" that the decision made "could" have been different had they not been denied procedural fairness. The parties also accepted that materiality was to be determined "as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined on the balance of probabilities": MZAPC at [38].
Having regard to this test for materiality, the parties' evidence, insofar as it is relevant to the submissions ultimately made, can be summarised as follows.

[25]

The parties' evidence on materiality

I have already outlined the evidence relevant to the workbooks and "tampering issue" above at [55]-[57] and [62]-[65]. This is relevant to the finding that Star's response on this issue was "deliberately unhelpful".
Star also adduced evidence to establish what it could have provided to SLED on the ASQA issue had it been given the opportunity to do so.
Mr Malik's evidence was that he would have taken the opportunity to put submissions before SLED to establish that its submissions regarding the ASQA audit were not deliberately misleading. [14] He would have sought advice from Star's solicitors, gathered evidence subject to that advice and instructed Star's solicitors to provide further evidence and submissions to SLED. This would have included the evidence of Lea Stevenson (at ASQA), Star's trainers and students, amongst other things. As for information received by Ms Stockley in response to inquiries she made of officers at ASQA, Mr Malik noted that it was not possible to say precisely what evidence or submissions Star might have been provided without knowing the substance of the information.
The evidence the Commissioner relied upon to show that any breach of procedural fairness was not material because the result would have been the same included Ms Stockley's account of her contact with ASQA as well as ASQA business records. Those records included emails between ASQA staff (Lea Stevenson and Gayatri Mahes) after the ASQA audit noting that Star had been advised of non-compliances and provided an overview of the next steps during the meeting on 5 August 2021.
The Commissioner also relied upon inconsistences between Mr Malik's affidavit evidence in this court as to what he would have put to SLED on the ASQA issue if afforded the opportunity to do so and what he put in his affidavits filed in the NCAT proceedings on the same question. In those proceedings, he deposed that he would have explained to SLED that the assertion that there were no "material" breaches was not deliberately misleading because ASQA used to distinguish between "critical" and "non-critical" non-compliances. The effect of that distinction is that Star was not being misleading when it asserted it had been informed that there were no "material" non-compliances.
In cross-examination Mr Malik accepted that during ASQA's audit he was informed by ASQA personnel that they had identified things that they considered to be non-compliances, [15] including non-compliance with clauses of the 2015 RTO Standards, [16] . Although he stated at one stage of his evidence that he understood that ASQA had concerns about non-compliance in relation to the first aid course, (which was part of the security licensing course), [17] he also gave evidence that he believed ASQA personnel did not identify particular clauses from the 2015 RTO standards during the closing meeting. [18] He said that he may have been told about concerns relating to the assessment of students as part of the Certificate II in Security Operations, but did not recall. [19] Mr Malik maintained that ASQA informed Star that it is compliant and that ASQA found no material non-compliances in relation to the Certificate II in Security Operations. [20] He maintained that ASQA had not identified any critical non-compliances.
The Commissioner also relied upon Star's witness Jeremy McNamara who was present for the ASQA audit. He too gave evidence that during the audit closing meeting ASQA identified that there were non-compliances by Star and that, in his understanding, ASQA identified non-compliance in relation to the security courses. [21] Like Mr Malik, he maintained that these were not considered to be "critical" non-compliances. He confirmed that Star was told during the meeting that it was not compliant in relation to particular clauses of the 2015 RTO Standards. [22] He also gave evidence that during the meeting Ms Stevenson said that ASQA does not "do things that way anymore", in relation to findings of "critical" non-compliance. He explained that Mr Malik was aware that ASQA was in transition to another process. [23]
The Commissioner relied on this evidence from Mr Malik and Mr McNamara to establish that the assertions made by Star in its response to the NSC about the ASQA audit were so obviously deliberately misleading that no submissions from Star could have led to another result. Nor, it was submitted, could this evidence have assisted them. The Commissioner relied on this evidence to establish both that the representations made by Star in its response to the NSC were so obviously false that there was no requirement to give them notice that such a finding would be made and also that any breach, if found, was not material.

[26]

Ms Stockley's evidence

Ms Stockley swore three affidavits and gave evidence at the hearing over two days. It was common ground that is unusual for a decision maker to be called as a witness to give evidence in judicial review proceedings for reasons including the principle in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13 which, as the majority of the High Court observed in MZAPC at [40] "prevents a decision-maker appearing as an active party in a proceeding for judicial review of one of its decisions". As the court observed in Hardiman at 35-36, if a decision maker becomes a protagonist in the proceedings there is a risk that impartiality is endangered.
Although no complaint was made by Mr King that the Hardiman principle had been contravened in this matter, it was submitted that, in circumstances where Star had relied upon a ground of review alleging apprehended bias, the court might consider Ms Stockley's decision to give evidence relevant to that issue.
Mr Emmett accepted that it is unusual for a decision maker to be called to give evidence but submitted that, given the nature of this case, it was not surprising that Ms Stockley did so. It was submitted that had she not done so an adverse inference could have been drawn with respect to the evidence that she could have given. It was submitted that in those circumstances, there could be no criticism, or an adverse conclusion made as a result of the course that was taken in response to the "extravagant case" initially brought by Star.
Star relied on the following portion of Ms Stockley's evidence in cross-examination by Mr King concerning her decision to obtain the ASQA material and considering it without notifying Star of that fact: [24] "Q. When you went to seek confirmation from ASQA of your preliminary view, you could've also sought clarification from Star or given them an opportunity to be heard, yes? A. I assume that Star was informing - instructing the legal counsel that put together that submission. So I - I didn't feel it accidental that the words, fully compliant, had been used. There's no need to clarify with them, their submission. Q. What I'm trying to get at; there was no legal or practical obstacle to A. No. Q. --- asking question. Just assume for a moment that you had written to Star and indicated that you proposed to find that Star had engaged in deception, and deliberately misled SLED and you had given them an opportunity to say anything they wanted to say about that, and submit any material they wanted to submit. Make that assumption for the time being. A. Yep. Q. And they had taken up that opportunity. A. Yep. Q. You would've given everything that they said and submitted, real and genuine consideration? A. I would've weighed it against the information that ASQA also provided me in relation to that process. Q. So a balancing process? A. Yes. Yep. Q. And you would've made your findings in the light of the material then before you as you weighed it? A. Yep. Q. And they might've been the same, or they might've been different? A. Well, they may - they may well - I - I can't say because I don't know what Star would've put forward. But I was fairly satisfied with ASQA's processes and the information that they had provided me, and the documents that they had provided me. Q. Can't rule it out though that they might've been …. A. Can't rule it out because I don't know what Star would've put forward." (Emphasis added.)

[28]

Star's submissions

Star's position following the close of the evidence was that "the issue of materiality … must be resolved squarely against the Commissioner" given the "previous admissions" made by the Commissioner and the answers provided by Ms Stockley extracted above.
Mr King submitted that Mr Malik has given extensive evidence about what he would have said and done has he had the opportunity to do so. It was submitted that the Commissioner was inviting the court to "cut through" the direct evidence of Ms Stockley and "come in over the top" to find that in fact nothing Mr Malik could have said or done would have changed Ms Stockley's finding on this point or the overall outcome of revocation. It was submitted that the Commissioner's approach required this court to wade impermissibly into merits review. Rather, the test was simply whether the result could have been different: it was not for the court to run a counterfactual and then make findings on a hypothetical basis.
Mr King accepted that the test was directed to whether there is a realistic possibility that a different decision could have been made, not just a different finding on the particular point, but it was submitted that there was a realistic possibility that Ms Stockley may have viewed Star more favourably, either in relation to those issues or in relation to that combined with other issues, or overall, in the exercise of her discretion.
In reliance on MZAPC (at ([37]), Mr King submitted that the relevant inquiry into procedural fairness was backward-looking, proceeding on the historical facts at the time of the decision; it was certainly not for this court, on an application for judicial review, to make its own decision on the merits about what would have happened if procedural fairness had been afforded to the applicant. It was submitted that the nature of the denial of procedural fairness in this case showed a practical injustice to the plaintiff and that this court could fall into merits review if it made findings of fact about what Ms Stockley would have done differently or how Mr Malik would have responded to it on the evidence.
Mr King also relied on the decision of the Full Court of the Federal Court in Degning v Minister for Home Affairs (2019) 270 FCR 451; [2019] FCAFC 67, which involved an apparent failure to afford procedural fairness about findings of dishonesty made about the applicant. At [39], Allsop CJ (with whom Collier J agreed) observed, noting the decision in SZMTA, that it is not necessarily the case that evidence must be led about what the applicant would have done.
As for the Commissioner's contention that the ASQA finding was but one part of a series of regulatory breaches by Star which may have gone toward revocation, Mr King again submitted that the court would be impermissibly entering into the merits of the matter to so find. It was submitted that this was not a case where the decision-maker had set out independent grounds, all of which could have, alone, resulted in revocation.
Mr King also submitted that the court could have regard to Ms Stockley's apparent lack of understanding of the requirements of procedural fairness as disclosed in her answers in cross-examination, which I have extracted above. This included that she agreed in cross-examination that "there was no legal or practical obstacle" to her asking Star questions or conveying her adverse view she had already expressed to ASQA. When it was put to her that she could have done that before she made her decision, Ms Stockley's response was that "it wasn't a ground in the show cause notice". It was submitted that in circumstances where no prior notice was given to Star of her adverse view it was even more of a reason to convey it to Star before she made a decision.
Star relied on Ms Stockley's evidence that the reason why she had not put her adverse view to Star before making her decision was that ASQA confirmed to her that Star had been notified by ASQA that they were not fully compliant. It was submitted that Ms Stockley's evidence that there was no need on her part to clarify Star's submission that they were fully compliant because she did not "feel it was accidental" that those words were used and she thought them as being misleading does not meet the requirements of procedural fairness where acting on feelings or instinct plays no part.
It was also submitted that I would draw a Jones v Dunkel [25] inference from the Commissioner's decision not to rely on the affidavit of Lea Stevenson from ASQA. Her potential evidence concerned the question of what was or was not said during the ASQA audit.

[29]

The Commissioner's submissions

It was submitted that Ms Stockley's evidence did not advance Star's case on either a breach of procedural fairness or materiality; the Commissioner did not accept that her evidence was to the effect that she may have made different findings on the overall issue of whether or not to revoke the s 27A approval had she heard from Star on these new matters.
On the question of materiality, Mr Emmett contended that even if Ms Stockley had given notice to Star that she considered its response to the NSC to be deliberately misleading or dishonest, Mr Malik (on behalf of Star) would have just repeated his insistence that there were no breaches which would not have altered Ms Stockley's finding.
Mr Emmett submitted that while the "ASQA finding" was the strongest of Star's arguments on procedural fairness, even if the court were to find that the Commissioner had acted unfairly, the finding was made "in the context of a decision involving a large number of unrelated, serious regulatory … matters which the decision-maker regarded as serious". While it was accepted that materiality was a "low bar" for Star to overcome, it was submitted that when regard is had to the revocation decision as a whole, the material relied upon by Star as to what it would have done does not meet that low bar.
Mr Emmett submitted that there was no suggestion that if the perceived dishonesty or deceit in their response had been put to Star or Mr Malik, there would have been a concession of honest mistake; to follow this hypothetical was, on the Commissioner's submission, not merits review but the necessary inquiry into historical facts and a counterfactual required by MZAPC.
As for the absence of evidence from Lea Stevenson, it was submitted that no Jones v Dunkel inference should be drawn. It was also submitted that there was sufficient evidence from Ms Stockley and the ASQA emails to establish Star had lied in its submission.
It was submitted that there is no need for the court to make credit findings in order to conclude that Star had been dishonest in its response as this could be proved by other evidence. Rather, the court is required to consider whether Star has proved that there was a realistic possibility of Ms Stockley not finding dishonesty in relation to the ASQA assertion had Star been afforded procedural fairness. It was accepted that one possibility was that Mr Malik would have explained his understanding of the distinction between critical and non-critical non-compliance but given the conflicting evidence as to what he told this court and what he put in his NCAT affidavit on that question, this would be a further indication of dishonesty.
Reliance was placed on the evidence of Mr McNamara and Mr Malik that, when they asked about critical non-compliances at the audit, ASQA said, "We don't do it that way anymore" which was contrary to Mr Malik's NCAT affidavit asserting that he was denied procedural fairness because he was denied the opportunity to explain the distinction between critical and non-critical compliance and ASQA did not tell them that the non-compliances were critical.
Mr Emmett also submitted that Mr Malik would have maintained his position that there was nothing misleading in the submission to SLED or would have given inconsistent evidence of the kind that this court received. Thus, although the Commissioner did not ask this court to make credibility findings about Mr Malik, the range of possible outcomes if procedural fairness had been accorded was relevant to materiality.
Ultimately, Mr Emmett put forward, cumulatively, three matters to support his contention that even if the court found that there had been procedural unfairness, those errors were not material.
First, Mr Malik's evidence is such that even if he had had a chance to respond to the suggestion of dishonesty, he would have maintained that he thought ASQA had described Star as "fully compliant", this being clearly inconsistent with other evidence.
Secondly, any further evidence that the plaintiff would have put before the decision maker would only have reinforced the concern about dishonesty.
Thirdly, the impugned finding as to dishonesty is a small part of a wider decision including a number of other grounds.
Finally, Mr Emmett also relied on MZAPC at [30], which was put as an "important preliminary step" (footnotes omitted): "The statutory limits of the decision-making authority conferred by a statute are determined as an exercise in statutory interpretation informed by evolving common law principles of statutory interpretation. Non-compliance with an express or implied statutory condition of a conferral of statutory decision-making authority can, but need not, result in a decision that exceeds the limits of the decision-making authority conferred by statute. Whether, and if so in what circumstances, non-compliance results in a decision that exceeds the limits of the decision-making authority conferred by the statute is itself a question of statutory interpretation."

[30]

Materiality: Relevant principles

The disposition of this matter turns to a significant extent on the question of materiality. The parties made extensive submissions as to the applicable principles to be applied upon which they largely agreed. Before turning to consider whether Star has established jurisdictional error in this matter, I propose to consider some of those authorities, particularly as to the relatively low bar for establishing materiality. I have included the facts relevant to the conclusions of materiality ( or immateriality) in those decisions as I have found the examples of what the High Court has fount to be material (and immaterial) of assistance.
In Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34, Kiefel CJ, Gageler and Keane JJ observed (at [29]) that a statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance before jurisdictional error is established. Their Honours went on to observe the following at 134-35 [30]: "Whilst a statute on its proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of 'the possibility of a successful outcome', or where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was "so insignificant that the failure to take it into account could not have materially affected" the decision that was made." (Emphasis added.)
Relevantly, in the passage extracted above, the test for materiality in the procedural unfairness context was expressed as being whether a person who has been denied procedural fairness has been deprived of "the possibility of a successful outcome". The plaintiff had challenged a refusal of a grant of a partner visa. The Administrative Appeals Tribunal ("the Tribunal") affirmed the decision because it was not satisfied two of the criteria prescribed by the Migration Regulations 1994 (Cth) had been met: that there were no "compelling reasons" to allow the visa application out of time and that the applicant had an outstanding debt to the Commonwealth with no arrangements to pay. The Minister accepted the Tribunal had erred with respect to the "compelling reasons" criterion but argued that the error was not material as the "Commonwealth debt" provided an independent basis on which the Tribunal was bound to affirm the delegate's decision (as it could not be satisfied that the public interest criterion was met). Applying the test of materiality, the High Court accepted this argument and dismissed the appeal.
The issue in Minister for Immigration and Border Protection v SZMTA was the interaction between s 438 of the Migration Act 1958 (Cth) and the requirements of procedural fairness. Section 438 provided that the Secretary of the Department was required to notify the Tribunal if the Department had provided to the Tribunal any documents in relation to an application for review which were relevantly confidential within the meaning of s 437. In SZMTA, three unsuccessful applicants for protection visas applied to the Tribunal for review and the Tribunal was notified under s 438 in relation to certain documents. In each case, it was not disclosed to the visa applicant that there had been a notification. The question for the court was whether, and to what extent, the Tribunal was required to disclose the fact of this notification to an applicant.
The High Court held that a s 438 notification triggers an obligation of procedural fairness on the part of the Tribunal to disclose the fact of the notification to an applicant. The majority judgment (Bell, Gageler and Keane JJ) observed the following on the issue of materiality at 445 [45]-[46]: "Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision. Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application." (Emphasis added.)
Materiality was squarely in issue in SZMTA. The High Court was satisfied that the denial of procedural fairness was immaterial because the documents and information which were the subject of the Tribunal's breach of procedural fairness obligations were of such marginal significance that the breach could not realistically have made any difference to the result. [26] Although Nettle and Gordon JJ agreed with the orders of the majority, they did not endorse a materiality test.
MZAPC v Minister for Immigration and Border Protection, was another case in which the Tribunal failed to disclose a s 438 notification to an applicant for a protection visa. The documents the subject of the notification included a "Court Outcomes Report" indicating that the appellant had been convicted of drink driving and other motoring offences, and one count of "state false name". The Tribunal rejected the application for review without making reference to the notification or any information contained in the relevant documents.
There was no dispute that the Tribunal had breached an implied condition of procedural fairness in failing to disclose to the applicant the s 438 notification, but the primary judge was of the view that the applicant had not shown that the notification or documents were in fact taken into account by the Tribunal.
In the High Court, the appellant argued that the onus of disproving materiality should be borne by the Minister and that he should not have to demonstrate that the Tribunal took into account the information covered by the notification. He also contended that no presumption of fact should be made that the Tribunal did not do so. He sought to re-open and overrule SZMTA to the extent it supported the contrary positions.
The majority (Kiefel CJ, Gageler, Keane and Gleeson JJ) noted the issue raised in MZAPC at [1]-[3] as follows (footnotes omitted): "This appeal raises issues concerning the content and proof of the element of materiality identified in Hossain v Minister for Immigration and Border Protection as ordinarily required to exist for a breach of an express or implied condition of a conferral of statutory decision-making authority to result in jurisdictional error. Materiality was subsequently explained in Minister for Immigration and Border Protection v SZMTA to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof. The explanation in SZMTA is sound in principle and consistent with precedent. SZMTA ought not to be revisited." (Emphasis added.)
Their Honours went on to state the following at [38]-[40] (footnotes omitted): "The counterfactual question of whether the decision that was in fact made could have been different had there been compliance with the condition that was in fact breached cannot be answered without determining the basal factual question of how the decision that was in fact made was in fact made. Like other historical facts to be determined in other civil proceedings, the facts as to what occurred in the making of the decision must be determined in an application for judicial review on the balance of probabilities by inferences drawn from the totality of the evidence. And like other counterfactual questions in civil proceedings as to what could have occurred - as distinct from what would have occurred - had there been compliance with a legal obligation that was in fact breached, whether the decision that was in fact made could have been different had the condition been complied with falls to be determined as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined on the balance of probabilities. Bearing the overall onus of proving jurisdictional error, the plaintiff in an application for judicial review must bear the onus of proving on the balance of probabilities all the historical facts necessary to sustain the requisite reasonable conjecture. The burden of the plaintiff is not to prove on the balance of probabilities that a different decision would have been made had there been compliance with the condition that was breached. But the burden of the plaintiff is to prove on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition. There is no reason to consider that the burden placed on the plaintiff of proving on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with the condition that has been breached is significantly more onerous than the burden indisputably borne by the plaintiff of proving on the balance of probabilities the historical facts necessary to enable the court to be satisfied that the condition has in fact been breached. And especially in a case such as the present, where the principle in R v Australian Broadcasting Tribunal; Ex parte Hardiman prevents a decision-maker appearing as an active party in a proceeding for judicial review of one of its decisions, there is no reason to consider that the burden would more fittingly be borne by the active defendant in a proceeding for judicial review to prove the historical facts necessary to enable the court to be satisfied that a different decision could not have been made." (Emphasis added.)
Their Honours considered the range of decisions advanced by the appellant to support his contention for a shift in the onus (including Stead v State Government Insurance Commission (1986) 161 CLR 141; [1981] HCA 54 and RE Refugee Review Tribunal Ex parte Aala (2000) 204 CLR 82; [2002] HCA 57), and concluded at [60] that those decisions provided "no support" for the shift in onus for which he contended and confirmed that: "Where materiality of a breach of an express or implied condition of a conferral of statutory decision-making authority is in issue in an application for judicial review of a decision on the ground of jurisdictional error, the onus of proving by admissible evidence on the balance of probabilities historical facts necessary to satisfy the court that the decision could realistically have been different had the breach not occurred lies unwaveringly on the plaintiff."
Further, at [68] their Honours stated: "The plaintiff on an application for judicial review of a decision of the Tribunal faces no presumptive impediment to the discharge of his or her burden of proof. Whether or not the plaintiff has discharged the burden of proving on the balance of probabilities that particular information covered by a particular notification was or was not taken into account by the Tribunal in making the decision under review falls to be determined at the end of the day by reference to inferences appropriate to be drawn from the totality of the evidence adduced on the application."
The majority found that there was no basis to find that the Tribunal had taken the information into account. Although Gordon and Steward JJ (with whom Edelman JJ agreed, while writing separately) were of the view that the onus of disproving materiality did shift to the respondent in an application for judicial review, the court unanimously held, wherever the onus lay, that the appeal should be dismissed (the majority holding that the appellant had failed to discharge the onus; and the other members of the court holding that the Minister had discharged the onus).

[31]

Nathanson v Minister for Home Affairs

I reserved my decision in this matter prior to the decision of the High Court in Nathanson v Minister for Home Affairs (2022) 96 ALJR 737; [2022] HCA 26 ("Nathanson"), which was handed down by the High Court on 17 August 2022.
On 18 August 2022, senior counsel for the defendant, via email, drew the court's attention to that judgment on behalf of both parties. It was submitted that "the Commissioner accepts that the court should approach materiality in this case in the manner described in Nathanson".
The decision in Nathanson concerned the prospective deportation of a New Zealand citizen on character grounds. He had arrived in Australia in 2010 and in 2013 was granted a Class TY Subclass 444 Special Category visa. In 2018, a delegate of the Minister cancelled that visa pursuant to s 501(3A) of the Migration Act; this was a mandatory cancellation on character grounds. The appellant was at that time serving a full-time custodial sentence of 2 years and 6 months for offences of deprivation of personal liberty, aggravated assault and stealing and driving a vehicle in a dangerous manner.
The decision under review was that made by a delegate of the Minister on 10 January 2019 not to revoke the mandatory cancellation, pursuant to s 501CA(4) of the Migration Act. Between that date and the date of the review hearing in the Tribunal, the terms of the ministerial direction with which the delegate was required to comply changed from Ministerial Direction 65 to Ministerial Direction 79. A significant difference between the two directions was that, by paragraph 13.1.1(1)(b), an additional factor to be considered was introduced, namely: "The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed."
Although the appellant had no domestic violence convictions, the Minister had obtained two police reports of family violence involving the appellant in 2012 and 2016. The delegate had not mentioned domestic/family violence in the reasons for non-revocation, but the appellant was generally aware that such allegations were relevant to the Tribunal's review. Accordingly, he had adduced some relevant evidence to the Tribunal, including a letter of support from his wife. At the hearing, the appellant represented himself. At the commencement of the hearing, the Tribunal member noted the change in Ministerial Direction but told the appellant that the changes were "minor" and went on: "[M]ost of those changes relate to how we treat crimes where women and children are involved, and with respect to the conviction history I have for you in front of me, I think they're of minor relevance, those changes. That is, mostly relevance [sic] to where the applicant has been charges [sic] in relation to convictions and offences in relation to women and children."
The solicitor appearing for the Minister did not comment on this nor make any specific reference to family/domestic violence in opening submissions. During the hearing, the appellant was cross-examined about the police reports. In closing submissions, the Minister's solicitor submitted that the appellant had been involved in violent conduct against his wife that was, "extremely serious conduct", especially having regard to the new direction in Direction 79. The Tribunal did not invite the appellant to address on this new issue.
On 4 April 2019, the Tribunal affirmed the delegate's non-revocation decision. In doing so, extensive findings were made adverse to the appellant with regards to family/domestic violence and the terms of Ministerial Direction 79.
The appellant sought judicial review of the decision in the Federal Court and was unsuccessful. He then appealed to the full Federal Court and was again unsuccessful by majority. While it was found that the Tribunal's course was procedurally unfair; the majority held that the error was not material, and thus not jurisdictional. The breach was found not to be material because the majority considered the nature of the lost opportunity to be "not obvious" and, whether or not the appellant needed to adduce evidence, he needed to at least articulate a "specific course of action which could realistically have changed the result".
On appeal, the High Court unanimously found the breach to be material, allowed the appeal, set aside the orders of the Federal Court and the Tribunal, and remitted the application for review back to the Tribunal to be determined according to law. The bench comprised six judges (Steward J did not sit as he formed part of the Full Court majority). The central issue in the appeal was materiality, and in particular the onus and burden of proof, considering the decisions of MZAPC and SZMTA.
Kiefel CJ, Keane and Gleeson JJ re-stated the test for materiality at [32] (footnotes omitted): "As explained in MZAPC, the materiality of a breach requires consideration of 'the basal factual question of how the decision that was in fact made was in fact made'. This question is determined by proof of historical facts on the balance of probabilities. Then, it is necessary to consider whether the decision that was in fact made could have been different had the relevant condition been complied with 'as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined'. The burden falls on the plaintiff to prove 'on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition'. (Emphasis added.)
Their Honours addressed the question of materiality on the facts of that case at [38]. The Ministers' argument that the breach was not material was rejected. The Minister had submitted that the best that the appellant could have done had he been afforded procedural fairness was to place the domestic violence incidents in "some context" that might have persuaded the Tribunal that they were less serious than they appeared from the police reports. Given that the incidents were recorded in police reports, explored with the appellant in cross-examination, and were objectively serious, the Minister argued that the breach was immaterial. The Minister also relied on the fact that the appellant had already adduced the wife's letter at the hearing which sought to contextualise the appellant's conduct and to stress their mutual commitment to their relationship. There was already evidence before the court that the appellant was remorseful and a "changed man". In rejecting that submission, their Honours stated the following at [39]: "The Minister's argument must be rejected. As explained in MZAPC, it is necessary to consider how the Tribunal's decision was in fact made. That decision was made by weighing the range of considerations in Ministerial Direction 79 that were of relevance to the appellant, following an evaluation of the appellant's history, circumstances and prospects as appropriate, in order to make findings about each of those considerations. In that context, additional evidence and submissions directed to mitigating the significance of the evidence of domestic violence could realistically have affected the Tribunal's evaluative fact finding concerning the nature and seriousness of the appellant's conduct and, ultimately, the outcome of the Tribunal's review. There was no need for the appellant to establish the nature of any additional evidence or submissions that might have been presented at the Tribunal hearing, had that hearing been procedurally fair. As a matter of reasonable conjecture, and as Wigney J reasoned, the appellant may have been able to present evidence on his own behalf or from his wife, and to make submissions that could have led to a different characterisation by the Tribunal of the nature of the appellant's offending. That evidence and those submissions may have provided more detail about the domestic violence incidents, placing them in the relevant context or providing relevant detail. The possibility that the appellant could have presented more to the Tribunal about how the incidents were to be evaluated could not be foreclosed by what was already before the Tribunal." (Emphasis added.)
Gageler J agreed in substance with the reasoning of the joint judgment. His Honour referred to the statement of principles by him and Gordon J in Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 at [59]-[60] (footnotes omitted): "There are cases in which conduct on the part of an administrator in the course of a hearing can be demonstrated to have misled a person into refraining from taking up an opportunity to be heard that was available to that person in accordance with an applicable procedure which was otherwise fair. To demonstrate that the person would have taken some step if that conduct had not occurred is, in such a case, part of establishing that the person has in fact been denied a reasonable opportunity to be heard. Where, however, the procedure adopted by an administrator can be shown itself to have failed to afford a fair opportunity to be heard, a denial of procedural fairness is established by nothing more than that failure, and the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome. The practical injustice in such a case lies in the denial of an opportunity which in fairness ought to have been given."
I pause to note that the present case falls into the latter of these two categories. His Honour continued at [45]-[47] (footnotes omitted): "SZMTA and MZAPC are together authority for two cumulative propositions. The first is that a denial of procedural fairness results in a decision being affected by jurisdictional error, so as to be capable of justifying the grant of curial relief, only if that denial is shown by the applicant to have been material to the decision. The second is that the materiality of a denial of procedural fairness is shown by the existence of a realistic possibility that the decision could have been different had procedural fairness been observed. SZMTA and MZAPC do not hold that, in order to meet the threshold of materiality, an applicant for relief must establish any part of what would have occurred on the balance of probabilities had a fair opportunity to be heard been afforded. The onus which the applicant bears to establish materiality is no greater than to show that, as a matter of reasonable conjecture within the parameters set by the historical facts established on the balance of probabilities, the decision could have been different had a fair opportunity to be heard been afforded. Establishing that threshold of materiality is not onerous. The explanations in MZAPC of the materiality of the denials of procedural fairness which had been found in Stead v State Government Insurance Commission and in Re Refugee Review Tribunal; Ex parte Aala are consistent with the observation that '[i]t is no easy task for a court … to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome'." (Emphasis added.)
Gageler J concluded at [55]-[59]: "Returning to the statement in WZARH, and now explaining it in light of SZMTA and MZAPC, the starting point is to highlight its foundational proposition that where the procedure adopted by an administrator can be shown on the balance of probabilities itself to have failed to afford a fair opportunity to be heard, a denial of procedural fairness will be established by nothing more than that failure. Building on that foundation, the statement can be taken to underscore that the denial of procedural fairness so established on the balance of probabilities will result in a finding of jurisdictional error if the applicant for relief establishes nothing more than the reasonableness, within the parameters set by the historical facts established on the balance of probabilities, of the conjecture that the decision could have been different had a fair opportunity to be heard been afforded. Unless there is something in the historical facts established on the balance of probabilities upon which to base an inference that the decision could not have been different had a fair opportunity to be heard been afforded, establishing the reasonableness of that conjecture will not be difficult. In the present case, the circumstances of which are fully described by Kiefel CJ, Keane and Gleeson JJ, the denial of procedural fairness lay in the failure of the Tribunal to afford the appellant a fair opportunity to be heard on a decision-making criterion. The appellant had already presented some evidence and made some submissions concerning events which related to that criterion. But he had presented that evidence and made those submissions without having had his attention adequately drawn to the significance of that decision-making criterion and therefore without having been put on notice of the possible significance of those events to that criterion. That decision-making criterion was shown by the Tribunal's reasons to have borne centrally on the evaluative and discretionary decision which the Tribunal went on in fact to make adversely to the appellant. Nothing in the historical facts established on the balance of probabilities concerning the course of the proceeding before the Tribunal casts doubt on the reasonableness of the conjecture that the appellant would have taken up the denied opportunity to be heard on that decision-making criterion had it been afforded to him. The reasonable conjecture is that he would have done so at least to the extent of making further submissions directed specifically to the significance of already adduced evidence to the newly introduced decision-making criterion. Quite properly, senior counsel for the Minister conceded as much in the course of oral argument on the appeal. What is more, there is nothing in the historical facts established on the balance of probabilities, concerning the applicable decision-making criterion or the reasons for the decision which the Tribunal in fact made, that casts doubt on the reasonableness of the conjecture that, had the Tribunal afforded the appellant procedural fairness, the Tribunal may have been influenced by the appellant's further evidence or submissions to form a different evaluative judgment in respect of the relevant decision-making criterion so as to arrive at a different decision. With these additional observations, I agree with the reasoning and orders proposed by Kiefel CJ, Keane and Gleeson JJ." (Emphasis added.)
Consistent with their dissenting judgments in MZAPC, the reasoning of Gordon and Edelman JJ (writing separately) differed to the majority both on the test for materiality and the onus. Gordon J was of the view that the nature of the error in that case was so fundamental that there was no "additional or separate onus" on the appellant to show that the error was material (at [77]), although her Honour acknowledged that not all denials of procedural fairness will be of this nature (relying on MZAPC and SZMTA). Consistently with her Honour's judgment in MZAPC, Gordon J stated that once an applicant for judicial review has established a procedural unfairness, the onus of establishing immateriality lies with the respondent (at [81]).
Edelman J stated (at [90]) that if procedural unfairness is made out, it should only be in an "exceptional case that the decision remains valid". His Honour went on to refer (at [93]) to the "regrettable premise" in MZAPC that an applicant for judicial review must bear the onus of proving materiality and stated his view of the relevant test for the onus as being that an applicant must do "almost nothing". His Honour advanced an alternate test at [95], found in favour of Mr Nathanson on that test at [105], and then concluded at [127] that one alternate test would be to treat the onus of proof of materiality, where it arises, as being: " … so slight that it can be satisfied by an applicant establishing nothing more than a 'quadruple might' at a high level of generality. To reiterate: there might have been things that Mr Nathanson or his wife might have said at the hearing that might have assisted his case in a manner that might have led to a different result." (Emphasis in original.)
Following the decision in Nathanson the test for materiality remains that expressed by the majority in MZAPC; putting "fundamental" errors to one side, an applicant for judicial review based on a denial of procedural fairness bears the overall onus of proving jurisdictional error by proving on the balance of probabilities all the historical facts necessary to sustain the requisite "reasonable conjecture", namely, the realistic possibility that a different decision could have been made had there been compliance with that condition.
As for the burden imposed by such a test, the majority decision of Nathanson at [32]-[33] (Kiefel CJ, Keane and Gleeson JJ) and [46], [55] (Gageler J) expressed it in terms which, it seems to me, place a less onerous burden on an applicant for judicial review to establish jurisdictional error based on a denial of procedural fairness, a conclusion which I will consider further below.

[32]

Consideration

The starting point for the consideration of whether Star has established jurisdictional error in this matter is whether it was denied procedural fairness in the first place. Although the Commissioner admitted the underlying facts relied upon to establish such a denial in relation to the ASQA material, she did not accept that Star had been denied procedural fairness on those facts. The Commissioner contended that Star was given an opportunity to be heard in relation to the revocation decision itself and that the revocation decision engaged extensively with the response provided by Star.
I am satisfied that Star was denied procedural fairness both in relation to the findings of dishonesty regarding the ASQA material and that they were deliberately unhelpful in their response. I do not accept the Commissioner's contention to the contrary for the following reasons.
First, I do not accept the Commissioner's submission that the references in the NSC to the potential for a finding of dishonesty in relation to the tampering allegation was sufficient to afford procedural fairness in relation to all of the adverse findings of dishonesty ultimately made.
Star was given notice that consideration was being given to revoking its approval pursuant to s 27 of the Act due to "repeated non-compliance" of conditions of approval and concerns about STAR's ability to comply with those conditions in the future. Particulars of these concerns were set out in the schedule which comprised sections A-G. Schedule A set out the details of the three previous NSCs, section B noted a "lengthy history of warnings, cautions and the issuing of infringement notices to STAR and its Approved Trainers", section C was entitled, "Failure to implement proposed Reforms/ongoing Breach of Conditions" and included an assertion that STAR's non-compliance is "serious and systemic" and section D related to concerns in relation to Star's compliance with condition 7A, imposed in May 2021. Section G is simply a summary of concerns which makes no reference to dishonest, misleading or deceitful conduct by Star. No complaint of any denial of procedural fairness is made in relation to sections A-D or G of the schedule to the NSC.
The Commissioner relied upon what was contained in sections E and F of the NSC as affording procedural fairness in this case
Section E is headed "Tampering with Student Records". Star was clearly on notice that there was an allegation of tampering; it was vigorously denied. Relevantly, the NSC included concerns that the submission of copies that differed to the originals "may be evidence of attempt by STAR to mislead and deceive SLED"; that the tampering with original student documents "may be evidence of an attempt by STAR to mislead and deceive SLED"; and that the placing of the ticks "may be evidence that STAR has twice attempted to mislead and deceive SLED in relation to these three students". I am satisfied that Star was on notice that SLED was concerned that the tampering "may" be evidence of misleading and deceptive conduct.
Section F outlined SLED's concerns about the "methodology used for the preparation of trainer audit reports" and asserted that the submission of student evidence that had not been reviewed by Mr Doslea, yet certified as being compliant was, inter alia, "misleading". I am satisfied that Star was on notice that SLED was concerned that Mr Doslea's certification of Mr Yates' compliance was misleading.
The notice of adverse findings on dishonesty in the NSC went no higher than those contained in sections E and F. As against those indicators, the delegate relied upon the ASQA material (which was not referred to in the NSC) to go on to find that Star had engaged in "deception"; that it had "deliberately misled" the Commissioner; and that Star's responses to the NSC were "deliberately misleading". She also stated in her reasons that Star's submissions were "deliberately unhelpful".
Secondly, I do not accept that the fact that Star subsequently received the ASQA audit report directly from ASQA overcomes any failure by SLED to provide it to it. After receiving Star's response (prepared by its lawyers), Ms Stockley corresponded with ASQA and obtained a copy of their report, which was prepared after the date of Star's response. When she obtained that information from ASQA, Ms Stockley perceived it to be adverse to Star but did not provide Star with an opportunity to be heard in relation to that perception. It is not to the point to contend, as the Commissioner did, that Star later received a copy of the report so they were not denied procedural fairness; they were not made aware that an adverse finding would be made in relation to something they had asserted in their submissions pertaining to a document that was not in existence at the time of that response.
Thirdly, putting to one side for the moment the factual dispute as to whether there was in fact "tampering" with student records, Star was not put on notice that an adverse finding would be made that their response to the NSC was "deliberately unhelpful by seeking to confuse what is meant by the term 'original documents'." They were not given an opportunity to be heard on the potential for this adverse finding and could not possibly have known it was going to be made.
Fourthly, I do not accept the Commissioner's contention that Ms Stockley's finding that Star's submissions about the ASQA audit were "incorrect and misleading" was such an "obvious and natural evaluation" that there was no requirement to give Star a further opportunity to be heard in relation to it, especially given the disputed evidence about this and that such an evaluation requires potential credit findings.
Overall, I do not accept the Commissioner's contention that there was no denial of procedural fairness. It is apparent on the face of the reasons for the revocation that findings were made in the full knowledge that they concerned a topic not in the NSC (see above at [92]) on which Star had not been invited to respond and which were serious findings of deliberate dishonesty.
Before turning to consider the question of materiality, I note that on the question of whether Star had been denied procedural fairness it relied on Ms Stockley's evidence extracted above at [116] that she did not appear to understand the requirements of procedural fairness. I have considered that submission but do not consider Ms Stockley's evidence to be relevant to the question of whether, viewed objectively, there was a denial of procedural fairness.

[33]

Materiality

As for the question of materiality, there was no dispute as to the relevant test, which I have already set out above, based on SZMTA and MZAPC and the more recent decision in Nathanson. The question for the court was whether there was a realistic possibility that the decision-making process could have resulted in a different outcome if Star had been given the opportunity to present evidence or make submissions on the findings that it had deliberately deceived SLED regarding the ASQA audit and had been deliberately unhelpful in its response to the NSC on the workbook tampering issue. This test is one of "reasonable conjecture".
Although the parties provided submissions on the factual findings I would make to determine materiality, both parties accepted that the court should not fall into merits review in doing so. Although the Commissioner contended that I would make a finding that Star had been deliberately dishonest in their response to the NSC, as I have already stated at [184], I do not consider that finding to be as straightforward as the Commissioner contended. For example, Star expressly stated in its response to the NSC that SLED had not made any "direct allegations about Mr Malik or Star in the NSC" of any dishonesty. That was their impression. The findings that could be made on the evidence ranged from a misunderstanding to deliberate dishonesty.
Moreover, I have had regard to the principles derived from the decisions of Nathanson, SZMTA and MZAPC. Those decisions all describe the test for materiality as being one of "reasonable conjecture". In none of those decisions was evidence adduced on behalf of the parties to litigate the question of whether any response provided could have resulted in a different outcome. Having regard to the observations of the four majority judges (Kiefel CJ, Keane, Gleeson JJ and Gageler J) in Nathanson at [33], [39] (Kiefel CJ, Keane and Gleeson JJ) and [46], [47] and [55] (Gageler J), the following principles emerge. 1. There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration: at [33]. 2. The standard of "reasonable conjecture" is undemanding: at [33]; and establishing the threshold of materiality is not onerous: at [47]. 3. Where a Tribunal errs by denying a party a reasonable opportunity to present their case, "reasonable conjecture" does not require demonstration of how that party might have taken advantage of that lost opportunity: at [33]. 4. There is no need for the appellant to establish the nature of any additional evidence or submissions that might have been presented at the Tribunal hearing, had that hearing been procedurally fair; rather the question is one of "reasonable conjecture": at [39]. 5. An applicant for relief is not required to establish any part of what would have occurred on the balance of probabilities had a fair opportunity to be heard been afforded. The onus to establish materiality is no greater than to show that, as a matter of "reasonable conjecture" within the parameters set by the historical facts established on the balance of probabilities, the decision could have been different had a fair opportunity to be heard been afforded: at [46]. 6. Where the procedure adopted by an administrator can be shown on the balance of probabilities itself to have failed to afford a fair opportunity to be heard, a denial of procedural fairness will be established by nothing more than that failure: at [55]. 7. A denial of procedural fairness will result in a finding of jurisdictional error if the applicant for relief establishes nothing more than the reasonableness, within the parameters set by the historical facts established on the balance of probabilities, of the conjecture that the decision could have been different had a fair opportunity to be heard been afforded: at [55]. 8. Unless there is something in the historical facts established on the balance of probabilities upon which to base an inference that the decision could not have been different had a fair opportunity to be heard been afforded, establishing the reasonableness of that conjecture will not be difficult: at [55].
Although I do not take the High Court in Nathanson to be stating that an applicant is precluded from adducing evidence as to what he or she would have put before the court in any given case, the question remains as to the extent to which a court is required to resolve the factual disputes which may arise when an applicant who has been deprived of procedural fairness puts evidence before the court of what it would have done, which is disputed, as happened in this case.
In the present matter the question of materiality is determinative of jurisdictional error. The Commissioner did not suggest other than that if the court found materiality the plaintiff must succeed. Gageler J recently described the nature of such an error in Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3 at [14] as follows: "Within a system of government in which power to affect a legal right or interest is limited to that authorised by law, there is utility in having a standardised means of expressing a conclusion that a purported exercise of power pursuant to an authority conferred by law exceeds the limits of that authority. Within our system, a conclusion to that effect has come to be expressed in the terminology of 'jurisdictional error'."
I cannot accept that the determination in any given case of whether a denial of procedural fairness constitutes jurisdictional error, based on whether or not it was material, should fall to be determined on findings of fact made by the court on the basis of disputed evidence to be resolved by credit findings. On that basis, I am not persuaded that running the counterfactual case the parties invited in this matter is the appropriate course to take, particularly following the decision in Nathanson.
Ultimately, I do not consider it necessary to make any findings about the disputed evidence that was adduced in this matter in order to consider whether, as a matter of "reasonable conjecture" within the parameters set by the historical facts established on the balance of probabilities, the decision could have been different had a fair opportunity to be heard been afforded. I will, however, consider the Commissioner's submissions regarding the significance of the findings of dishonesty made in the context of the decision overall.
Nor do I propose to have regard to Ms Stockley's evidence that she could not say whether her findings would have been different because she did not know what they would have put forward. She agreed that she could not rule out that it would have been different because she did not know what Star would have put forward. I remain unpersuaded that a concession by a decision-maker during evidence in which it is conceded that there was a possibility of a different finding had the process been procedurally fair, could be determinative in circumstances where the test for materiality falls to be determined by the court as a matter of "reasonable conjecture".
I note at the outset that this is not a Hossain-type case where revocation was inevitable, notwithstanding the procedural unfairness, because of other findings made. But the Commissioner's argument was slightly more nuanced; it was submitted that even if the court was persuaded that there is a realistic possibility that Ms Stockley would have made different findings about whether Star was dishonest regarding the ASQA audit, it would not follow that the same finding applied to the ultimate revocation decision.
I have had regard to the fact that Star's approval was revoked for multiple reasons, not just the dishonesty aspects; so much is clear from the reasons attached to the revocation decision. Nor were the breaches confined to just one area of training delivery. But a finding of dishonesty is a very serious matter and, having regard to the relevant test, cannot be said to be something which could only play a minor role in any decision. A finding that Star had deliberately deceived the regulator was such a significant finding that it had the potential to colour everything else that Star represented to the regulator. In those circumstances, I cannot conclude, as was contended by the Commissioner, that the ASQA material played a comparatively minor role in Ms Stockley's reasons. Rather, I am satisfied that, as a statement of general application, findings of dishonesty tend to add a different flavour to a basis for revocation than non-compliances alone would.
A further difficulty for the Commissioner arises from the fact that the findings in relation to which procedural fairness was denied pertained to dishonesty: it is well established that any allegation of fraud must be specifically pleaded. Leeming JA (with whom Beazley P and Sackville AJA agreed) re-stated the relevant principles in Nadinic v Drinkwater (2017) 94 NSWLR 518; [2017] NSWCA 114 at [45]-[49] noting the reasons why any allegation of fraud must be pleaded specifically and particularised. In Bale & Anor v Mills (2011) 81 NSWLR 498; [2011] NSWCA 226, the court (Allsop P, Giles JA and Tobias AJA) was critical of findings of dishonesty made about a witness who was not afforded an opportunity to explain the dishonesty of which he was accused. Similarly, in Hansen & Anor v Patrick & Ors (2019) 3 Qd R 93; [2018] QCA 298, the primary judge made a finding that the first plaintiff gave false evidence, despite the fact that the allegation had not been raised by the parties or put to Mr Hansen in cross-examination. On appeal, the court held that the rules of procedural fairness dictate that a finding that might impeach a party's integrity should only be made after giving the party a fair opportunity to respond.
Although these cases all pertain to judicial rather than administrative decisions, the principles are clearly the same: no finding of dishonesty should be made without the person whose honesty is being impugned being afforded the opportunity to have the allegation clearly put to them in order to respond to it.
It is to be accepted that Star had a history of ongoing non-compliance, and it is conceivable that SLED was experiencing a sense of frustration with it. But that only highlights how SLED's perception of Star's dishonesty in its submission may have been the "last straw" for the Regulator given that long history of non-compliance. In that regard, I note that in an exchange with senior counsel for Star during closing submissions so much was acknowledged in the following submission: "EMMETT: And your Honour's right. If there is a realistic possibility that this finding tipped the balance, in other words, that there was - and I'm just restating the proposition - if that were the case, there would be a realistic possibility of a different outcome. In that case, we have to accept that the Court would find that it was material. And as I've acknowledged, it is a low bar for the plaintiff, but there are three matters and it's the cumulative impact of these three matters that are important."
Senior counsel then went on to make the three submissions I have extracted above at [137]-[140] and which I have already addressed.
Having regard to the historical facts established on the balance of probabilities, I am satisfied that Star has established, as a matter of reasonable conjecture, that the revocation decision could have been different had a fair opportunity to be heard on the ASQA material been afforded. I cannot accept the submission that these findings of dishonesty were not one of the critical factors on which the revocation decision turned and that there was no realistic possibility of a different decision.
In light of the fact that the test is not an onerous one, I am satisfied that SLED's perception of dishonesty may well have been the "last straw" which tipped the balance, and the result could have been different had procedural unfairness not been denied. I have applied that test of reasonable conjecture to an impartial decision maker, as I am required to.

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