5.1.2 No breach of procedural fairness has been established
121 Ground 1 of the further amended notice of appeal alleges a breach of procedural fairness by the Tribunal. I deal with each of the considerations relied upon in support of the alleged breach of procedural fairness as particularised in the further amended notice of appeal and elucidated in the submissions for Mr Wills, and have reached the view that neither individually nor cumulatively do they establish a breach of procedural fairness.
122 First, by virtue of s 17(2) of the NVR Act, it was a requirement for ASQA and the Tribunal on review to consider whether SSG complied with the VET Quality Framework before it could grant SSG's application for registration, which included Standard 7.1 requiring the RTO to ensure that its executive officers or high managerial agents meet each of the F&PP requirements. ASQA maintained consistently since January 2019 and ASQA's first 7.1 SFIC that the Tribunal could not be satisfied that SSG had complied with Standard 7.1 given Mr Wills' involvement as an executive officer in PP which demonstrated that he was not a person in whose suitability the public was likely to have confidence.
123 Secondly, it was these allegations which led to Mr Wills personally being joined at his request to the SSG Tribunal proceeding, in order to afford him the opportunity to defend his reputation against these allegations. As the Tribunal found at [144], "[h]e is a man who had a vital interest in these proceedings insofar as his reputation was at stake." The point therefore, in his being joined was, as the Tribunal also found, "to enable him to be heard on the fit and proper person issue in relation to his conduct in PP and in the applicant" (TR at [145]). In other words, it was properly understood that adverse findings of the nature sought by ASQA in its first 7.1 SFIC with respect to Mr Wills' conduct should not be made without affording Mr Wills the opportunity personally to give evidence and make submissions in response. This is in fact what Mr Wills indicated he would do in his first SFIC where he set out his facts and contentions in response, alleging that he did in fact meet the F&PP requirements (see at [55]-[57] above).
124 Thirdly, Mr Wills contended on the appeal that the Tribunal failed to ensure that he had fair notice of ASQA's case by reason of the lack of particularity of allegations against him in ASQA's Amended 7.1 SFIC, the position taken by ASQA in response to requests for clarification, and the subsequent adoption by ASQA at the second tranche of the hearing of an "incoherent 'half-way house'" to the following effect:
ASQA has eschewed, in writing and orally, any need for the Tribunal to conduct a full review of all the underlying facts to determine whether its decision in relation to PP was the correct or preferable decision. Nor, however, has it relied solely upon the fact of its decision. Rather, it contends that certain matters - including ASQA's investigation, and PP's response, and ASQA's reasoning process - could justify a conclusion that Mr Wills does not meet the fit and proper person requirements. …
(Wills CS at [69].)
125 This construction of ASQA's position at various times in the SSG Tribunal proceeding underpins the second matter on which Mr Wills relies, namely, that contrary to ASQA's position as clarified in correspondence and at the Tribunal hearing, the Tribunal in fact undertook a review of the underlying facts in determining that he did not meet the F&PP requirements. In so doing, Mr Wills alleges that the Tribunal failed to afford him fair notice of the specific facts and circumstances which might cause that body to conclude that he did not meet the F&PP requirements as a result of which he was deprived of a fair opportunity to decide whether or not to give evidence and to make submissions against such a finding.
126 These submissions must be rejected. As a starting point, the critical passages of ASQA's Amended 7.1 SFIC which led to the requests for clarification by Mr Wills' solicitors bear repeating:
84. Notwithstanding unsubstantiated allegations of ASQA's impartiality and discrimination against PP, the ASQA decision, in so far as it addressed the application of the FPP requirements to PP and, or any of PP['s] executive officers or high managerial agents, was not subject to judicial review. It is a valid decision and it remains operative.
85. This Tribunal, having regard to ASQA's notice of intention to cancel with accompanying briefs of evidence and of analysis to PP, PP's response and ASQA's reasoned findings, and its decision which continues to be operative, may be satisfied that, consistent with ASQA's finding, Mr V Wills, at the time of that decision, was not a person in whom the public was likely to have the relevant confidence.
(Emphasis added.)
127 The correspondence from Mr Wills' legal representatives focused upon the contention at [84] that the ASQA PP decision "remains operative" and, based on that, sought to confine ASQA to one of two possible constructions on the erroneous assumption that one or the other must be correct; that is, either:
(1) ASQA relied upon the existence of its operative PP decision as sufficient to establish that at the time of that decision, Mr Wills could not satisfy the F&PP requirements; or
(2) the Tribunal should revisit all of the underlying matters and form its own assessment.
(See eg the letter dated 3 June 2020 from Mr Wills' solicitors quoted at [68] above.)
128 However, it is apparent from ASQA's Amended 7.1 SFIC, that neither alternative represented ASQA's position. The letter posed, in other words, a false dichotomy. To the contrary, in its Amended 7.1 SFIC, ASQA's primary case was plainly that:
(1) the relevant issue was whether "this Tribunal [can] be satisfied that from July 2017, Mr V Wills met criteri[on] i)", ie, that it was for the Tribunal independently to reach the requisite state of satisfaction with respect to criterion (i);
(2) in line with this, paragraph [85] of ASQA's Amended 7.1 SFIC alleged that the Tribunal may be satisfied, "consistent with ASQA's finding", that Mr Wills was not a person in whom the public was likely to have the relevant confidence at the time of the ASQA PP decision; and
(3) the Tribunal should be satisfied that Mr Wills did not meet that criterion:
(a) at the date of the ASQA PP decision:
(i) for the reasons given by ASQA in its PP decision including the analysis in the underlying audit reports which were set out in detail in ASQA's Amended 7.1 SFIC and fully cross-referenced to the evidence, as explained above; and
(ii) having regard to the failure by PP (and therefore Mr Wills as CEO and a director) to challenge that analysis despite having the opportunity to do so in the context of the ASQA PP inquiry, which was again the subject of explicit factual contentions in ASQA's Amended 7.1 SFIC;
(b) nor did he meet that criterion subsequently, given among other things the report addendum dated 11 August 2017 prepared by Deloitte for the DET with respect to PP, Mr Wills' role with SSG, and SSG's continuing non-compliance and failure to implement systemic change.
129 As such, ASQA's proposition was ultimately a simple one. With respect to Mr Wills' failure to meet the criterion as at the time of the ASQA PP decision, ASQA did not seek to "reinvent the wheel" but relied upon the matters which it identified at [85] of the Amended 7.1 SFIC. In this regard, PP's failure in the course of the ASQA PP decision-making process, save in very limited respects, to challenge the evidence and analysis underlying ASQA's notice of intention to cancel PP's registration was, given Mr Wills' executive roles within PP as well as SSG, plainly relevant. Specifically, it was a matter which could, in the absence of any evidential challenge in the SSG Tribunal proceeding to the ASQA PP decision or underlying material, logically form a basis on which the Tribunal might infer that neither ASQA's findings nor the underlying analysis were capable of being answered otherwise than by bare assertion. Further or alternatively, absent such a challenge, it might logically form a basis on which the Tribunal could derive greater comfort in reaching the same view as that reached by ASQA in light of the Tribunal's own assessment of such underlying material as it considered relevant.
130 It follows, with respect, that Mr Wills' contentions to the contrary in the correspondence took certain statements in [84]-[85] out of context. Not surprisingly, therefore, in subsequent correspondence ASQA asserted its continued reliance upon all of the matters listed in its Amended 7.1 SFIC. To do so did not invite uncertainty or introduce confusion, but directed Mr Wills' attention back to its carefully defined facts, issues and contentions in its Amended 7.1 SFIC and from there, to the cross-references to the evidence filed in support of its contentions. Subject to only one caveat, with respect, it beggars belief that Mr Wills had any confusion about the case which ASQA sought to make and on which he had been on notice in the SSG Tribunal proceeding since the letter from AGS on 17 January 2019.
131 The caveat is that the letter from AGS on 10 June 2020 was arguably ambiguous in so far as it stated that "[t]he contention at [85] of ASQA's Amended 7.1 SFIC does not require the Tribunal to "make its own assessment of the underlying matters which form the basis of ASQA's determination in relation to PP, and thereafter independently make its own assessment of whether [y]our client satisfied criterion (i) of Schedule 3 to the 2015 Standards"." Certainly, Mr Wills' legal advisers responded on their understanding that AGS's letter "confirm[ed] that ASQA will only invite the Tribunal to reach a finding because ASQA has itself made a finding rather than because of any objective basis for ASQA's finding" (see at [74] above).
132 The short point, however, is that any possible confusion about whether ASQA's contentions had fundamentally changed since Mr Wills was joined to the SSG Tribunal proceeding was put beyond doubt by Ms Brennan QC in the passages from the transcript set out at [84], [87] and [88] above on day one of the second tranche of the Tribunal hearing. In unequivocal terms, Ms Brennan QC explained how ASQA sought to rely upon the ASQA PP decision and that, while ASQA was not "second-guessing" its reasoning, it was perfectly open to SSG or Mr Wills to challenge its reasoning if they disagreed with it. That position accorded with the case contained in ASQA's Amended 7.1 SFIC, properly understood, for the reasons I have earlier explained. Furthermore, the Tribunal then ruled upon the issue, expressly accepting Ms Brennan QC's submission as to the nature of ASQA's case and, despite the Tribunal's invitation for an adjournment to consider his position as a result, Mr Giles SC stated that he did not require any adjournment (see at [89] above).
133 The fact that Mr Wills (and SSG) continued to press a construction of ASQA's case in closing submissions as a confusing "half-way house" and may have made forensic decisions on the assumption that that construction would be ultimately accepted by the Tribunal, cannot alter the facts that:
(1) as a result of the argument at the commencement of the first day of the second tranche of the hearing, Mr Wills (and SSG) were on clear notice as to the nature of ASQA's case;
(2) the Tribunal ruled at that point that the matter would proceed on the basis that that was ASQA's case; and
(3) Mr Wills (and SSG) had ample opportunity to meet that case notwithstanding any earlier confusion, given the invitation to have an adjournment to reconsider their position if they so wished.
134 Nothing more was required to be done as a matter of procedural fairness. As Kirby J stated in Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at [38]:
Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.
(Emphasis added.)
135 That being so, it also follows that there was no breach of procedural fairness in the Tribunal assessing material underlying the ASQA PP decision in order to satisfy itself as to whether Mr Wills met the F&PP requirements as a step in its reasons for concluding that SSG had not complied with Standard 7.1.
136 Fourthly, Mr Wills challenges the Tribunal's rejection of his contention that ASQA had failed to particularise a specific fact that he performed in PP simply on the basis that "the material which is voluminous fully apprise[d] him of the conduct of PP during his time as a director and high managerial agent" (TR at [99]). The submission is, with respect, untenable. While the material was voluminous, ASQA's Amended 7.1 SFIC set out in detail the basis on which it contended that Mr Wills' involvement in PP was, given its disastrous performance, such as to render him a person in whom the public could not have the relevant confidence and was cross-referenced to the specific evidence relied upon, as I have earlier explained. Nor can it be said that the issues were defined at too great a level of generality. In this regard, the following additional matters should be addressed:
(1) The contention at AS [19] that ASQA's Amended 7.1 SFIC failed to give notice of the conduct of PP which was alleged by focusing wrongly instead on the ASQA PP inquiry relies upon reading paragraph [84] of the SFIC out of context for the reasons I have already given. The conduct of PP upon which ASQA relied was the subject of detailed reasons and analysis in the ASQA PP decision and the underlying reports, all of which were summarised in the Amended 7.1 SFIC, and in the other factual contentions set out in ASQA's Amended 7.1 SFIC: see at [60] above.
(2) Nor is there any merit in the proposition that "nowhere did the Amended SFIC identify what it was about Mr Wills' conduct in relation to PP … that was said to have the consequence that he did not meet the "Fit and Proper Person" criteria" (AS at [20]). To the contrary, ASQA's case focused upon Mr Wills' role as an executive officer and/or high managerial agent of PP in circumstances where ASQA contended that PP had breached the 2015 RTO Standards "in the manner set out in" the ASQA PP decision (Amended 7.1 SFIC at [67(d)(i) and (ii)]), namely: that PP's lack of compliance and remedial action, and that of third parties on its behalf, "[was] apparently widespread, systemic, unethical and materially unanswered [and] was or should have been within the knowledge of the RTO's senior management and directors and they should have swiftly taken action to remedy it".
137 Fifthly, Mr Wills further contends that:
… the error in the Tribunal's approach is also manifested in its approach of having regard to "whether or not a matter was challenged by Mr Wills or [SSG] at the time" of the decision in respect of PP: J[140], see also J[99] … Even at the most abstract level there is an obvious problem with this conclusion. Why would either Mr Wills or SSG make a submission or seek to challenge a decision which related to PP? PP did challenge the decision by seeking review of the decision in the Tribunal and that challenge remains pending.
(AS at [21].)
138 However, at [99], the Tribunal made the different point that Mr Wills "was given an opportunity to respond on behalf of PP to ASQA when it proposed to cancel PP's registration" (emphasis added) - a contention that was undeniably correct. As to the Tribunal's reasons at [140] (quoted at [106] above), Mr Wills rightly points to the illogicality of suggesting that weight might be given to whether or not a matter giving rise to the ASQA PP decision was challenged by SSG or Mr Wills. However, it is by no means clear that this was what the Tribunal was suggesting at [140]. Its statement is very unclear. In any event, there is no such illogicality in suggesting that weight might be given to whether such a matter was challenged by PP or Mr Wills given that he was a director of PP at the time, and ultimately, it was this, together with the failure by Mr Wills and SSG in the SSG Tribunal proceeding to challenge the statistical evidence with respect to PP, to which the Tribunal attached weight.
139 Furthermore, Mr Wills' submission at AS [22] that neither PP nor Mr Wills was given a proper opportunity to comment on Mr Wills' fitness to be an executive officer of an RTO in the course of the PP investigation lacks specificity and cannot be sustained. It ignores the terms of the notice itself (at AB Part C, tab 11, pp. 119-21) which explained, under the heading "Reasons for the intended decision", that ASQA intended to make the decision to cancel PP's registrations under the NVR Act and the ESOS Act because of the findings, including instances of non-compliance, in the four attached reports. Furthermore, the 27 March 2017 Compliance Monitoring Report: Cover Report specifically found that PP and its executive officers and high managerial agents were not fit and proper to be involved in or registered as an RTO citing in particular criteria i) and k): cf AS at [23]. As earlier explained, the notice then invited PP to respond, which PP in fact took advantage of.
140 In the sixth place, the unfairness of the Tribunal's approach was said to have been compounded by the following matters:
(1) the finding by the Tribunal that PP engaged in a fraudulent and dishonest manipulation of the system for public funding of vocational education of which Mr Wills had actual or constructive knowledge in circumstances where ASQA's contentions had never been framed by reference to an allegation of fraud and Mr Wills was not otherwise on notice that such a finding might be made (referring to TR at [156]-[157]); and
(2) the Tribunal's failure to engage with Mr Wills' substantial, clearly articulated submission relying on contemporary audits of PP (quoting from the Newbery report summarised at [103] above), which instead "sidestepped any analysis of this evidence, by stating "these are reports that involve value judgements" as opposed to the "purely statistical" material upon which it did place weight" (quoting from TR at [141]-[142]).
141 However, the first of these contentions is based on a misreading of the Tribunal's reasons. In this regard, it is well established that the reasons of an administrative decision-maker "are not to be construed minutely and finely with an eye keenly attuned to the perception of error": Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2 (Brennan CJ, Toohey, McHugh and Gummow JJ (quoting with approval Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287)). When, therefore, it is said that such reasons should be read beneficially, ultimately this means that "a commonsense and realistic approach should be taken to understanding the reasons as a whole to see what it was that the Tribunal was saying": Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 at [14]-[15] (Allsop J (as his Honour then was)).
142 The Tribunal's finding that the VET FEE-HELP system was "rorted" in the sense explained in the accompanying footnote needs to be understood in context. At [154], the Tribunal refers to "the work of dishonest agents" which had been uncovered by the Senate Inquiry, the establishment of which, together with related adverse publicity, should, in the Tribunal's view, have led PP to put its house in order. However, despite finding that PP may have been benefiting from the work of dishonest agents (TR at [154]), the Tribunal did not find that PP itself was dishonest. Rather, it found at [156] that PP was "at best … totally dysfunctional". That is a far cry from a finding of dishonesty or fraud. Nor did the Tribunal make any finding of dishonesty or fraud against Mr Wills. Rather, bearing in mind that fraud and dishonesty cannot be constructive, the Tribunal found only that, as a director of and high managerial agent of PP during this period, he "knew or should have known" of the matters occurring over a long period of time in relation to PP and appreciated their seriousness (TR at [157]). It follows that there was no breach of procedural fairness in failing to advise of any possibility that a finding might be made that PP and/or Mr Wills had knowingly participated in fraud or dishonesty as encapsulated in the concept of a "rort". The short point is that no such finding was made.
143 As to the Newbery report, Mr Wills' disagreement with the weight given by the Tribunal to the report is in truth a disagreement with the merits of the Tribunal's decision which this Court lacks power to consider on a judicial review application: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 (Mason J); Federal Commissioner of Taxation v Primary Health Care Ltd [2017] FCAFC 131; (2017) 252 FCR 496 at [21] (the Court). As earlier stated, the requirements of procedural fairness do not extend to a requirement to advise an applicant of the Tribunal's internal thinking processes such as with respect to the weight which it may attach to particular documents or opinions.