FEDERAL COURT OF AUSTRALIA

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1 FEDERAL COURT OF AUSTRALIA Australian Institute of Professional Education Pty Limited v Australian Skills Quality Authority [2016] FCA 814 File number: NSD 733 of 2016 Judge: LOGAN J Date of judgment: 13 July 2016 Catchwords: ADMINISTRATIVE LAW where respondent issued notice to applicant requiring information under s 26, National Vocational Education and Training Regulator Act 2011 (Cth) where Administrative Appeals Tribunal proceedings on foot whether respondent s exercise of information-gathering power constituted contempt of Administrative Appeals Tribunal whether issuing of notice was a fishing exercise whether issuing of notice was ultra vires whether time period for compliance with notice was legally unreasonable Administrative Appeals Tribunal Act 1975 (Cth) s 63(2)(b) ADMINISTRATIVE LAW where respondent issued notice to applicant requiring information under s 26, National Vocational Education and Training Regulator Act 2011 (Cth) where Administrative Appeals Tribunal proceedings on foot where applicant requested extension of time to comply with notice where respondent signified but then retracted, because particular decision-maker lacked authority, decision to extend time for compliance extension of time request remains undetermined whether relief ought to be withheld as a matter of discretion even if jurisdiction exists in original decision Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 33, 41(2), 63, 63(d) (repealed) 63(2)(b), Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 13, 16 Australian Industries Preservation Act 1906 (Cth) Education Services for Overseas Students Act 2000 (Cth) Evidence Act 1995 (Cth) Income Tax Assessment Act 1936 (Cth) ss 263, 264 Judiciary Act 1903 (Cth) ss 13, 39B National Vocational Education and Training Regulator Act 2011 (Cth) ss 26, 39, 62

2 Tax Administration Act 1953 (Cth) Trade Practices Act 1974 (Cth) s 155 Cases cited: Brambles Holdings Limited v Trade Practices Commission (No 2) (1980) 44 FLR 182 Environmental Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 Haoucher v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 466 Huddart, Parker & Co Pty Ltd & Appleton v Moorehead [1909] HCA 36; (1909) 8 CLR 330 Jebb v Repatriation Commission (1988) 80 ALR 329 Melbourne Steamship Company v Moorehead [1912] HCA 69; (1912) 15 CLR 333 Minister for Immigration, Local Government and Ethnic Affairs v Taveli (1990) 23 FCR 162 Minister for Immigration and Multicultural Affairs v Li (2013) 249 CLR 332 O Reilly v Commissioner of State Bank of Victoria (1983) 153 CLR 1 Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997; [1968] 1 ALL ER 694 Public Service Board (New South Wales) v Osmond (1986) 159 CLR 656 R v Associated Northern Collieries (1911) 14 CLR 387 Saunders v Commissioner of Taxation (1988) 19 ATR 1289 Shell Co of Australia v Commissioner of Taxation (1930) 44 CLR 530 Watson v Commissioner of Taxation (1999) 96 FCR 48 Date of hearing: 13 July 2016 Registry: Division: National Practice Area: Category: New South Wales General Division Administrative and Constitutional Law and Human Rights Catchwords Number of paragraphs: 45 Counsel for the Applicant: Solicitor for the Applicant: Mr J D Pizer QC with Ms A Lord Redvers Read

3 Counsel for the Respondent: Solicitor for the Respondent: Mr S Rebikoff Australian Government Solicitor

4 ORDERS NSD 733 of 2016 BETWEEN: AND: AUSTRALIAN INSTITUTE OF PROFESSIONAL EDUCATION PTY LIMITED Applicant AUSTRALIAN SKILLS QUALITY AUTHORITY Respondent JUDGE: LOGAN J DATE OF ORDER: 13 JULY 2016 THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent s costs of and incidental to the application, to be taxed at not agreed. Note: Entry of orders is dealt with in Rule of the Federal Court Rules 2011.

5 REASONS FOR JUDGMENT REVISED FROM TRANSCRIPT LOGAN J: 1 The Australian Institute of Professional Education (the applicant), until December 2015, and thereafter by virtue of a stay order to which I shall shortly make further reference, was and is a registered training organisation under the National Vocational Education and Training Regulator Act 2011 (Cth) (the NVR Act). The Australian Skills Quality Authority (the Authority) is a public authority which has regulatory responsibilities in respect of the NVR Act and the Education Services for Overseas Students Act 2000 (Cth) (the ESOS Act). 2 On 17 December 2015, pursuant to s 39 of the NVR Act, the Authority cancelled the applicant s registration as a national vocational and training registered organisation, on grounds that it had not complied with particular statutory standards. At the same time, the Authority rejected an application by the applicant to change the scope of its registration under the NVR Act. Also on that day, the Authority cancelled the applicant s registration under the ESOS Act as an approved provider of vocational education and training courses to overseas students. 3 In respect of such decisions, a right to seek the external review of them on the merits by the Administrative Appeals Tribunal (the Tribunal) exists. On 23 December 2015, the applicant availed itself of that right by applying to the Tribunal for the review of each of the decisions mentioned. 4 Early in the following year, on 5 January 2016, it sought from the Tribunal an order under s 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), staying the operation of each of the cancellation decisions, pending the hearing and determination of the review proceedings by the Tribunal. On 22 January 2016, the Tribunal decided to grant a stay of each of the cancellation decisions. The effect of that stay is that the applicant continues to be able to enrol students and provide vocational education and training as hitherto registered. 5 The proceedings in the Tribunal have yet to be concluded. Between January 2016 and now, a number of procedural directions hearings have occurred and the Tribunal has made particular procedural directions. It will be necessary shortly to give more detail to the procedural

6 - 2 - history to date in the Tribunal. The proceedings have been set down for hearing in the Tribunal next month. That fact makes it particularly desirable that judgment be delivered in the present proceeding as soon as possible. That it has been possible to deliver judgment today is a reflection on the industry and ability of counsel for each of the parties in the identification, by both oral and written submission, of the issues for decision and pertinent related authority. 6 To understand the nature of the present proceeding, it is desirable first to offer that further detail in relation to the procedural history in the Tribunal. In that regard, the evidence is not controversial. What follows is taken from the affidavits of Mr Maat (filed 27 June 2016) and Mr Khanche (filed 18 May 2016), by collective reference to which that history emerges. 7 On 19 February 2016 the Tribunal issued, at the request of the Authority, a summons under the AAT Act requiring the production of certain information relating to compliance by the applicant with its obligations under both the NVR Act and the ESOS Act. The applicant applied to the Tribunal on 26 February 2016 to have this summons set aside, both on the ground that it was a fishing exercise and, therefore, impermissible and also on the basis that it was oppressive. On 22 March 2016, the Authority agreed to the withdrawal of that summons. That same day, under s 26 of the NVR Act, it issued a notice requiring information about the applicant s staff as well as enrolment assessment and academic progress of students since 1 January 2014 and student commencement and completion rates as a percentage of enrolments. This notice was complied with. 8 Section 26 of the NVR Act provides: (1) An NVR registered training organisation must give the National VET Regulator such information as the Regulator requests, by notice in writing, for the purposes of this Act. (2) A notice must specify the period within which the information requested is to be given. 9 On 1 April 2016, in the exercise of powers conferred on the Tribunal by, materially, s 33 of the AAT Act, the Tribunal directed that the applicant [sic - I interpolate it as common ground that the reference to applicant was an inadvertent error and should be read as the Authority], was by close of business on 6 April 2016 to file with the Tribunal and serve on the applicant (as the direction should be understood), a draft direction pursuant to s 33 of the AAT Act in relation to production of documents by the applicant. On 6 April 2016, the Authority lodged

7 - 3 - a proposed direction with the Tribunal and served a copy of the same on the respondent. That proposed direction contained a number of provisions in relation to production of documents. 10 On 13 April 2016 and by consent, the Tribunal made the first of the directions which had been proposed. The following day, the Tribunal listed the application for the balance of the proposed directions for hearing by telephone. Each of the parties lodged submissions about the making of those further directions. The interlocutory telephone directions hearing was then conducted by the Tribunal on 21 April That day, the Tribunal made, subject to some minor amendments to proposed direction 3, directions 2 to 4 of those hitherto proposed. On 29 April 2016, the Tribunal made proposed directions 5 to On 3 May 2016, the Authority issued a further notice under s 26 of the NVR Act requiring the applicant to produce certain information by 10 May 2016 and other information by 23 May The terms of the notice were as follows: Under section 26 of the National Vocational Education and Training Regulator Act 2011 (the NVR Act), it is a condition of registration that: 26 Condition other information must be provided (1) an NVR registered training organisation must give the National VET Regulator such information as the Regulator requests, by notice in writing, for the purposes of this Act. (2) A notice must specify the period within which the information requested is to be given. The Australian Skills Quality Authority (ASQA) is the Commonwealth regulator responsible for the administration and enforcement of the NVR Act. The NVR Act specifies requirements for the provision of nationally accredited vocational education and training (VET) courses and only Registered Training Organisations subject to regulation may provide this training. Your RTO is a VET provider under the Higher Education Support Act 2003 (Cth) (the HES Act) and is eligible to offer courses to students funded under the Commonwealth s VET FEE-HELP Assistance Scheme. Under the VET FEE-HELP scheme, students enrolling in an RTO s courses are able to request a loan from the Commonwealth for the tuition fees associated with those courses, which are paid by the Commonwealth directly to the RTO. Under the provisions of the scheme, the debt for those fees is taken to have been incurred by the student immediately after the census date for the unit, regardless of whether the student subsequently completes the course. This notice is issued pursuant to section 26 of the NVR Act and is for the purposes of the NVR Act, in determining whether the NVR Act has been, or is being, complied with, assessing the correctness of information provided

8 - 4 - under the NVR Act, ensuring the RTO is adequately resourced to provide nationally accredited training and assessment, and is providing training and assessment. Specifically, ASQA has received information that as at 21 December 2015 the RTO had approximately 5904 students who were enrolled in qualifications due to expire in March However, information provided by the RTO on 29 April 2015 was that it had only 2,165 domestic students enrolled accessing VET FEE- HELP as at 1 April Based on the information set out above, ASQA is concerned that the RTO may have failed to transition a large number of students from expired qualifications to current qualifications before the relevant expiration date. The failure to transition students may have implications for the financial viability of the RTO because it may be an event under clause 10 of the Higher Education Support (VET) Guideline 2015 which would require the RTO to re-credit substantial sums of money in excess of its current coverage for tuition assurance. This is particularly so in circumstances where, on 2 May 2016 the RTO provided information that its maximum coverage for tuition assistance is $7,500,000.00, but its VET FEE-HELP exposure is $32,317, for 2,015 students (being an average of $16, per student). This figure also does not include any exposure for the need to re-credit students that were not transitioned as required. The information sought is also for the purpose of determining whether the RTO has complied or continues to comply with the Standards for NVR Registered Training Organisations (the Standards) generally, and in particular standard 1.26, which are a condition of registration under section 22 of the NVR Act. The purpose of the Standards is set out in Part 1 of the Standards for Registered Training Organisations (RTOs) 2015: Purpose The purpose of these Standards is to: 1. set out the requirements that an organisation must meet in order to be an RTO; 2. ensure that training products delivered by RTOs meet the requirements of training packages or VET accredited courses, and have integrity for employment and further study; and 3. ensure RTOs operate ethically with due consideration of learners and enterprises needs. Further, the RTO has obligations under the Financial Viability Risk Assessment Requirements, which provide (in FVRAR5) that a registered training organisation must be able to demonstrate its financial viability at any point in time in order to inform a judgment about whether the organisation has the financial resources necessary to: 1.1 acquire the requisite assets and physical resources to deliver all qualifications on its scope of registration;

9 employ sufficient appropriately qualified staff to cover the courses for which it takes enrolments; 1.3 provide appropriate levels of student services to students; 1.4 remain in business to ensure that each student can achieve completion; and 1.5 meet the above requirements, even in an unsure environment. Requirement to give information ASQA hereby requires you to give the following information: 1 For the period 1 March 2016 to the date of this notice for all domestic students that were or are enrolled in all VET qualifications and/or VET statements of attainment on the scope of registration of the RTO during the period, the following information for each student for each enrolment: a. Surname b. First name c. Date of birth d. Any addresses held by the RTO for the student e. Any contact telephone numbers held by the RTO for the student f. Any addresses held by the RTO for the student g. Date of enrolment h. Date of commencement i. Name and code of course enrolled j. Date of any transition to a new qualification and the name of the qualification transitioned to (if applicable) k. Where a student has transferred to another RTO the name of that RTO and the date transferred l. Name and code of units of competency assessed as competent for and date assessed as competent for each m. Name and code of qualification or statement of attainment completed and date qualification or statement of attainment issued; n. Date of withdrawal (if applicable) o. Where the student received VET FEE-HELP assistance: i. Student CHESSN number ii. iii. iv. Date/s of census date Units of competency for each census date Amount of VET FEE-HELP debt incurred by the student at

10 - 6 - each census date v. Amount and date of VET FEE-HELP debt remitted vi. vii. viii. ix. Reason VET FEE-HELP debt remitted Amount and date of VET FEE-HELP debt invalidated Reason for VET FEE-HELP debt invalidated; Amount re-credited and date of re-credit of all or part of the student s VET FEE-HELP balance. x. Current VET FEE-HELP exposure for the student for the RTO (if applicable) xi. For any student that had VET FEE-HELP exposure for the student for the RTO, the date that the exposure ceased and reason for cessation of that exposure; 2 Copies of any documents evidencing transition for each student that has been transitioned for the following qualifications: a. BSB50207 Diploma of Business b. BSB50607 Diploma of Human Resources Management c. BSB50613 Diploma of Human Resources Management d. BSB51107 Diploma of Management e. BSB51407 Diploma of Project Management f. BSB60407 Advanced Diploma of Management g. FNS50611 Diploma of Financial Planning h. FNS50210 Diploma of Accounting for item 1 by ing it in in electronic format of.xls (.xls, xlsx or.xml) to marked attention Anthony Barkey, Regulatory Operation Manager so that it is received by 4pm AEST 10 May for item 2 by ing it to or by positing the information in an electronic format on an electronic storage device to GPO Box 9928, BRISBANE QLD 4001, marked attention Anthony Barkey, Regulatory Operation Manager so that it is received by 4pm AEST 23 May Interpretation In this Notice, including any Schedule to this Notice, unless the contrary intention appears: person includes a body corporate, whether a corporation or not; the NVR ACT means the National Vocational Education and Training Regulator Act 2011 (Cth);

11 - 7 - the singular includes the plural and the plural includes the singular. Failure to comply If you fail to comply with this notice ASQA may apply for an injunction in the Federal Court of Australia requiring you to comply with this notice. If you fail to comply with this notice ASQA may consider imposing an administrative sanction under section 36 of the NVR Act against your registration, including suspension of registration under section 38 of the NVR Act or cancellation under section 39 of the NVR Act. Further information Should you require further information, do not understand what you are required to do or if you would like to seek an extension of time in which to comply with this notice please marked attention Anthony Barkey, Regulatory Operation Manager. Dated: 3 May It is that notice which forms one foundation for the present proceeding. On 5 May 2016, by its solicitor, the applicant put to the Authority that the notice was not validly issued and, further, that it would not be able to comply within the times specified with the requirements of the notice. For its part, the Authority s initial response to this by its solicitor was to signify a disposition to extend the time for compliance such that the times would respectively become 20 May and 3 June Since then, the Authority has ascertained that the instructions to signify that particular disposition to the request made on behalf of the applicant were not given by a delegate having authority to extend time. Upon that being realised, the Authority, by its solicitors, by letter dated 31 May 2016, put particular propositions to the applicant, which materially included a provision for consent orders in the present judicial review proceeding remitting the matter back to the delegate for the consideration of the extension of time request on terms that would have seen the Authority paying the applicant s costs as taxed or agreed. 14 That was not put in an unqualified way. The Authority, by its solicitor, put to the applicant that the Authority would do this on the footing that the notice issued on 3 May 2016 was valid and was not issued in contempt of the Tribunal, that it had ongoing regulatory responsibilities in respect of the applicant given the stay by the Tribunal and that the notice was not issued for a purpose otherwise than for the purposes of the NVR Act. That particular offer has not been availed of. It remains the case that there is, at present, an undetermined

12 - 8 - request for an extension of time in respect of compliance, a request made prior to the expiry of the earlier fixed compliance times. 15 In between 10 May 2016, when the Authority made its initial response and the sending and receipt of the letter just mentioned on 31 May 2016, the applicant decided to institute judicial review proceedings under both the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) and s 39B of the Judiciary Act 1903 (Cth) (the Judiciary Act). As it has come to be amended, the originating application seeks the judicial review of the Authority s decision to issue the s 26 notice on 3 May 2016 and further to review a refusal, so it is alleged, to make a decision on the applicant s request for an extension of time for compliance. The latter is necessarily premised on there being in fact such a refusal, which is, to say the least, a very moot point indeed. 16 The grounds of review which are particularised are, omitting these particulars, as follows: 1 The Notice is invalid, or alternatively the decision to issue the Notice was an improper exercise of the power conferred by section 26 of the NVET Act or was otherwise contrary to law, because the decision to issue the Notice: 1.1 constitutes a contempt of the Administrative Appeals Tribunal (AAT); or 1.2 was for the substantial purpose of obtaining evidence for the AAT proceeding and there is a real risk that obtaining the evidence in that way either gives ASQA advantages which the rules of procedure of the AAT otherwise deny it or otherwise usurps the function of the AAT to decide the matter according to law. 2 The Notice is invalid, or alternatively the decision to issue the Notice was an improper exercise of the power conferred by section 26 of the NVET Act or was otherwise contrary to law, because by issuing the Notice the Respondent sought to obtain information otherwise than for the purposes of the [NVET Act]. 3 The Notice is invalid, or alternatively the decision to issue the Notice was an improper exercise of the power conferred by section 26 of the NVET Act or was otherwise contrary to law, because the decision to issue the Notice involved a legally unreasonable exercise of power. 4 The Respondent s refusal to make a decision on the Applicant s request for an extension of time was an improper exercise of the power conferred by section 26 of the NVET Act or was otherwise contrary to law, because the refusal involved a legally unreasonable exercise of power.

13 It is convenient first to deal with Grounds 1 and 2. The prosecution of these grounds, as was frankly acknowledged by counsel on behalf of the applicant, faces the considerable difficulty of, on one view, requiring the Court to depart from two earlier, considered decisions of judges exercising the original jurisdiction of the Court in respect of the use, administratively, of statutory information-gathering powers either in conjunction with proceedings pending or shortly to become pending in the Tribunal. The judgments in question are Saunders v Commissioner of Taxation (1988) 19 ATR 1289 (Northrop J) (Saunders), and Watson v Commissioner of Taxation (1999) 96 FCR 48 (Heerey J) (Watson). 18 The applicant made a submission that each of these cases was wrongly decided and should not be followed, but further or alternatively, that the circumstances of the present case were such that each was distinguishable. To understand what follows, including the reference to each of these cases, it is desirable to set out the terms of s 63 of the AAT Act: Contempt of Tribunal (1) A person commits an offence if: (a) (b) the person engages in conduct; and the conduct obstructs or hinders the Tribunal or a member in the performance of the functions of the Tribunal. Penalty: Imprisonment for 12 months or 60 penalty units, or both. (2) A person commits an offence if: (a) (b) the person engages in conduct; and the conduct would, if the Tribunal were a court of record, constitute a contempt of that court. Penalty: Imprisonment for 12 months or 60 penalty units, or both. 19 It is also desirable to say something about the position which would prevail in the event that the s 26 power had been exercised at a time when there were pending proceedings not in the Tribunal, but rather before a court exercising the judicial power of the Commonwealth. 20 As to the latter, the effect of a trilogy of cases decided in the High Court over a century ago, namely Huddart, Parker & Co Pty Ltd & Appleton v Moorehead [1909] HCA 36; (1909) 8 CLR 330, R v Associated Northern Collieries [1911] HCA 73 and Melbourne Steamship Company v Moorehead [1912] HCA 69; (1912) 15 CLR 333, was summarised by Franki J in Brambles Holdings Limited v Trade Practices Commission (No 2) (1980) 44 FLR 182 at (Brambles Holdings). The effect of those cases is that an information-gathering power

14 conferred on the Controller-General of Customs by the Australian Industries Preservation Act 1906 (Cth) was held not to empower the Controller-General to act in aid of judicial proceedings, but rather that the power was exhausted and not able to be used for the purpose of collecting evidence in a pending suit. 21 In Brambles Holdings, in the application of these authorities, Franki J held that the service of what purported to be a notice under s 155 of the Trade Practices Act 1974 (Cth) by the Chairman of the Trade Practices Commission upon a respondent to proceedings pending in this Court in which the Trade Practices Commission was an applicant, and which related to matters relevant to the pending proceedings, was beyond the power conferred by s 155 of that Act and constituted a contempt of the Court. 22 The applicant placed particular reliance upon the terms of the then s 63(d) of the AAT Act, which provided: A person shall not: (a) (b) (c) (d) insult a member in or in relation to the exercise of his powers or functions as a member; interrupt the proceedings of the Tribunal; create a disturbance, or take part in creating or continuing a disturbance, in or near a place where the Tribunal is sitting; or do any other act or thing that would, if the Tribunal were a court of record, constitute a contempt of that court. Penalty: $1,000 or imprisonment for 3 months. 23 Uninstructed by prior authority, there is certainly something to be said for the view that Parliament has sought, by that section (and now s 63(2)(b)), to assimilate proceedings in the Tribunal with an exercise of judicial power for the purposes of defining what constitutes an offence against s 63, and therefore, by implication, conduct which is not lawful. To hold that though, would require me to reach a conclusion that views to the contrary expressed in Saunders by Northrop J and in Watson by Heerey J were not just wrong, but plainly wrong, such that I ought not, even though they are not strictly binding on me, follow them. 24 Each is a now longstanding judgment, upon which agencies of the Commonwealth upon whom information-gathering powers are conferred, and in respect of whose decisions merits review by the Tribunal is possible, have doubtless acted on the assumption of its correctness. Even if I were disposed not to follow these judgments, and I am not so disposed, in my view,

15 the circumstances are such that any reconsideration ought to be undertaken by the Court in an exercise of appellate, rather than original, jurisdiction. 25 The essence of the reasoning in these authorities was supplied by Heerey J in Watson at 53-54, [29] [32]. The passage concerned, though lengthy, should be set out in full, because of its importance for present circumstances: 29. Counsel argued that if the present AAT proceedings were proceedings in a court the issue of the s 264 notice would be a contempt. He relied on Brambles Holdings Ltd v Trade Practices Commission (No 2) (1980) 44 FLR 182; 32 ALR 328. In that case the Trade Practices Commission had brought proceedings against a company alleging contravention of s 45 of the Trade Practices Act 1974 (Cth). About the time when the proceedings might have been thought ready for trial the Commission served on the company notices under s 155 of the Trade Practices Act asking questions relevant to the proceedings. It was held that s 155 vested no power in the Chairman of the Commission to serve notice upon a defendant in proceedings which had already been commenced by the Commission and that the issue of the notice was a contempt of court. Franki J held that the giving of a s 155 notice was an attempt to achieve by threats an advantage in proceedings already before the court which could not otherwise have been obtained because, the proceedings being for a penalty, the Commission was unable to require discovery or answers to interrogatories. Therefore it was a clear interference with the court (at 189; 335, 192; 338). 30. His Honour noted (at 192; 338) that the function of the court was to determine issues according to law and the evidence presented to it, and not to proceed in an inquisitorial manner, endeavouring itself to ascertain the truth. 31. The possibility of contempt by the use of the Commissioner s investigative powers under the Assessment Act in the course of AAT proceedings was considered by Northrop J in Saunders v Federal Commissioner of Taxation (Cth) (1988) 19 ATR 1289; 88 ATC In that case a taxpayer had been charged with conspiracy to defraud the Commonwealth and conspiracy to prevent or defeat the execution or enforcement of the Assessment Act. Also the taxpayer had applications for review of assessments pending before the AAT. ATO officers sought access to certain of the taxpayer s records under s 263, a section which confers on the Commissioner a right of full and free access to all buildings, books and documents etc for any of the purposes of the Assessment Act. In seeking an injunction to restrain such access the taxpayer argued, inter alia, that it would amount to a contempt of the AAT. 32. In rejecting that argument, Northrop J acknowledged (at 1292; 4352) that s 263 did not empower the Commissioner to engage in conduct amounting to contempt of court in the sense of improperly interfering with judicial proceedings before a court. His Honour went on to say (at 1296; ): The function of the Tribunal is to review a decision on its merits, not to determine the correctness in law of that decision. For this purpose, the Tribunal substitutes itself for the primary decision maker and may exercise all the powers and discretions conferred

16 upon the decision maker in order to determine what decision should have been made under the enactment: Administrative Appeals Tribunal Act s 43(1). To assist it in reaching a decision, the Tribunal has before it all the material that was before the decision maker and any additional material that is placed before it. A decision of the Tribunal is deemed to be a decision of the decision maker: s 43(6). This is explained by Kitto J in Mobil Oil Australia Pty Ltd v Commissioner of Taxation (Cth) (1963) 113 CLR 475 at 502 where his Honour said, in the context of a Board of Review that: its function is merely to do over again (within the limits of the taxpayer s objection) what the Commissioner did in making the assessment not to give a decision affecting the taxpayer s legal situation, but to work out, as a step in administration, what it considers that situation to be. The Board is in the same position as the Commissioner himself as the Privy Council said in Shell Co of Australia Ltd v Commissioner of Taxation (Cth) (1930) 44 CLR 530, at 545. It is only another executive body in an administrative hierarchy : Jolly v Commissioner of Taxation (Cth) (1935) 53 CLR 206 at 214 per Rich and Dixon JJ. These comments are equally applicable to the Tribunal which exercises administrative functions, not the judicial power of the Commonwealth. Nevertheless the Tribunal is required to act in accordance with the requirements of natural justice. Viewed in this light, it is not surprising that the procedures of the Tribunal differ greatly from court proceedings. For example, there is no provision for the filing of pleadings nor for discovery or inspection of documents. Nor is the Tribunal bound by the rules of evidence. Provision is made for there to be parties to the proceedings (s 30) but in a reference such as this the parties are not adversaries in the strict sense, and any argument they present constitutes material which assists the Tribunal in deciding what decision should be made. The decision of the Tribunal is not in the nature of a judgment for or against a particular party. Therefore it is, in my view, inappropriate to regard the Commissioner as having gained an unfair advantage as a result of his use of the s 263 powers. The Tribunal is in the shoes of the Commissioner and may use any material put before it in reaching its decision. The applicant would be entitled to be informed of material so obtained. Therefore, it is quite permissible for the Commissioner to obtain material pursuant to its s 263 powers for the purpose of placing such material before the Tribunal, if indeed this was a purpose of obtaining the information. In so doing, he is not in contempt of the Tribunal. It is also necessary in this context to consider the effect of s 63 of the Administrative Appeals Tribunal Act, although that section was not referred to by counsel for either party. 26 There is, in my view, no material distinction to be drawn as between s 26 of the NVR Act and either s 263 or s 264 of the Income Tax Assessment Act 1936 (Cth) (Income Tax Assessment Act) for present purposes. Subject, then, to the submissions as to distinguishing on the facts

17 the principle as it emerges from each of these authorities the conclusion that there was, notwithstanding the existence of pending administrative review proceedings, power to issue the notice. 27 As to that power, reference ought also be made to a submission made on behalf of the Authority by reference to observations made by Mason CJ and Toohey J in their joint judgment and by McHugh J in his separate judgment in Environmental Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477. The effect of these observations, at 507 and 559 respectively, is that, even where there are judicial proceedings on foot, it does not necessarily follow, as perhaps might be thought from the earlier High Court authorities mentioned in Brambles Holdings, that a statutory information-gathering power is spent in all circumstances. Particularly having regard to McHugh J s observations at , what may be critical is whether the availing of the power interferes with the course of justice; in other words, a mere exercise of the power does not necessarily constitute a contempt. I do not find it necessary in the circumstances of this case further to explore that particular subject, which would become relevant if I were minded to hold that s 63 of the AAT Act did operate, at least to some extent, to inhibit the exercise of the power under s 26 of the NVR Act. 28 As to the distinguishing of the circumstances of this case, it is further desirable to set out from Mr Maat s affidavit paras 19 and 20, including the table which appears as part of para 19: 19. Given the period covered by the spreadsheet, there is significant overlap between the data produced by the Applicant to the Respondent on 13 May 2016 and that required by item 1 of the Notice. This is demonstrated by the following table: Direction 2 of Directions dated 21 April 2016 For each qualification for each student enrolled with the Applicant from 1 January 2014 to 1 March 2016 who has accessed VET FEE- HELP, the following data, provided electronically in.xls (or.xlxs or.xml) format: 2.1: Name of the student (including surname, first name, and other names); 2.2: Gender, date of birth and CHESSN number Item 1 of the Notice dated 3 May 2016 For the period 1 March 2016 to the date of this notice for all domestic students that were or are enrolled in all VET qualifications and/or VET statements of attainment on the scope of registration of the RTO during the period, the following information for each student for each enrolment: a. Surname b. First name c. Date of birth p. Where the Student received VET FEE-HELP assistance:

18 : Contact details (including any addresses, contact telephone numbers and addresses held by the Applicant for the student) 2.4: Enrolment details (including date of enrolment, date commencement, name and code of course enrolled, whether enrolled as distance or face to face, date of transition to new qualification if applicable and date of withdrawal if applicable) 2.5: Name of units of competency assessed as competent for and date assessed as competent 2.6: Name of qualification or statement of attainment completed and date qualification or statement of attainment issued i. Student CHESSN number d. Any addresses held by the RTO for the student e. Any contact telephone numbers held by the RTO for the student f. Any addresses held by the RTO for the student g. Date of enrolment h. Date of commencement i. Name and code of course enrolled j. Date of any transition to new qualification and the name of the qualification transitioned to (if applicable) n. Date of withdrawal (if applicable) l. Name and code of units of competency assessed as competent for and date assessed as competent for each m. Name and code of qualification or statement of attainment completed and date qualification or statement of attainment issued 2.7: Date of census date p. Where the student received VET FEE-HELP assistance: ii. Date/s of census date 2.8: Units of competency for each census date 2.9: Amount of VET FEE-HELP debt incurred by the student at each census date 2.10: Amount and date of VET FEE-HELP debt remitted or invalidated, and reason for remittal or invalidation (if recorded) p. Where the student received VET FEE-HELP assistance: iii. Units of competency for each census date p. Where the student received VET FEE-HELP assistance: iv. Amount of VET FEE- HELP debt incurred by the student at each census date p. Where the student received VET FEE-HELP assistance: v. Amount and date of VET FEE-HELP debt remitted vi. Reason VET FEE-HELP debt remitted vii. Amount and date of VET FEE-HELP debt invalidated viii. Reason VET FEE-HELP debt invalidated; 20. The above comparison table shows that the only information required under the Notice that was not produced by the Applicant on 13 May 2016 is as follows: The following parts of item 1: k. Where a student has transferred to another RTO the name of

19 that RTO and the date transferred; p. Where the student received VET FEE-HELP assistance: ix. Amount re-credited and date of re-credit of all or part of the student s VET FEE-HELP balance. x. Current VET FEE-HELP exposure for the student for the RTO (if applicable) xi. For any student that had VET FEE-HELP exposure for the student for the RTO, the date that the exposure ceased and reason for cessation of that exposure; The whole of item 2. However, item 2 applies only to students who transitioned from the particular courses specified in the item. Analysis of the data in column Q on the worksheet titled Sections 2.1 to 2.4 and 2.6 shows that only 507 students had transitioned from the specified courses. 29 What is put in relation to distinguishing the circumstances is that the Tribunal made, in the exercise of its procedural regulation power, very particular directions in relation to the production of documentary and other information by the applicant. It is, having regard to the transcript of directions hearings, which is in evidence, obvious that the Tribunal was counselling a particular course by the Authority. The Tribunal had in mind that, in the event of noncompliance with directions, a power of dismissal would have been enlivened. This, the Tribunal thought, had particular, attractive qualities in terms of ensuring the expeditious prosecution of the review application, which were superior to the use of a summons. 30 It is further put on behalf of the applicant that, by the s 26 notice, the Authority was seeking to do what it could not do by summons, which was to fish for information. So much may be accepted. The ability to use a notice under s 26 to fish for information is no different to the ability enjoyed by the Commissioner of Taxation in respect of the use of the powers once found in ss 263 and 264 of the Income Tax Assessment Act and now, for some reason or other which commended itself to Parliament, consigned to that dense thicket termed Sch 1 to the Tax Administration Act 1953 (Cth): see, as to the Commissioner s information-gathering power, O Reilly v Commissioner of State Bank of Victoria (1985) 153 CLR However put, reliance on the various procedural directions made by the Tribunal and the procedural history prior to 3 May 2016 of the review proceeding cannot alter the essential

20 character of that proceeding. In this regard it is instructive, in my view, to recall observations made by Davies J in Jebb v Repatriation Commission (1988) 80 ALR 329 at 333 where his Honour, with the advantage of experience as President of the Tribunal, observed that: However, the general approach of the tribunal has been to regard the administrative decision making process as a continuum and to look upon the tribunal's function as a part of that continuum so that, within the limits of a reconsideration of the decision under review, the tribunal considers the applicant's entitlement from the date of application, or other proper commencing date, to the date of the tribunal's decision. 32 When one recalls that it is administrative power of the kind long ago regarded as constitutionally permissible in Shell Co of Australia Ltd v Commissioner of Taxation (1930) 44 CLR 530 which is being exercised by the Tribunal and that that exercise of power is part of an administrative decision-making continuum, the objection to the use of the s 26 power falls away. It is a mistake, and a fundamental one, to assimilate administrative review on the merits with an exercise of judicial power with respect to the end to which the exercise of that power is directed. 33 Subject to express contrary provision in a particular statute, the Tribunal looks to the present state of circumstances. There was no suggestion, indeed to the contrary, as to the Tribunal s role in this case. The Tribunal was entitled to have placed before it information as to the present circumstances and each party to the review was entitled to place such evidence before it. The Tribunal was entitled to expect that the Authority would assist it and not act wholly or even perhaps at all in an adversarial way. 34 That aside, the institution of proceedings in the Tribunal and the associated stay had the effect: the Authority was not relieved from its obligation as regulator to conduct regulatory functions under each of the Acts in question. Materially, those functions included, and continue to include by virtue of the stay, regulatory functions in respect of the ongoing operations of the applicant. 35 The Authority chose not to voluntarily furnish to the applicant reasons for the decision to issue the s 26 notice. At common law, it was not obliged so to do: Public Service Board (New South Wales) v Osmond (1986) 159 CLR 656 (Osmond). In choosing not to supply reasons, the Authority did not render itself immune from judicial review and as Sir Harry Gibbs observed in Osmond at 663, by reference to Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997; [1968] 1 ALL ER 694:

21 [T]he fact that no reasons are given for a decision does not mean it cannot be questioned; indeed, if the decision-maker does not give any reason for his decision the court may be able to infer that he had no good reason. 36 No request was made pursuant to s 13 of the ADJR Act for the furnishing of a statement of reasons. As it happened, Mr Barkey, who was the relevant delegate, signed off on 3 May 2016, prior to the issuing of the notice, a decision record. That record is in evidence. It is apparent from that record that Mr Barkey was well aware of the existence of AAT proceedings. Materially, in that record it is stated: There is sufficient evidence from the information gathered as a result of the audit process and student interviews conducted in late 2015, on which it is reasonable to hold serious concerns about the RTO s resourcing and operations, including financial viability, and reason to consider any impact this may have on the provision of its services in accordance with the NVR Act. ASQA is also charged with satisfying itself concerning the financial viability of RTOs and seeks information in relation to this. ASQA considers there are potential financial difficulties for AIPE in relation to the Department of Education and Training s administration of VET FEE-HELP funding to AIPE. Specifically, ASQA has received information that as at 21 December 2015 the RTO had approximately 5904 students who were enrolled in qualifications due to expire in March However, information provided by the RTO on 29 April 2016 was that it had only 2,165 domestic students enrolled accessing VET FEE-HELP as at 1 April Based on this, ASQA is concerned that the RTO may have failed to transition a large number of students from expired qualifications to current qualifications before the relevant expiration date. The failure to transition students may have implications for the financial viability of the RTO because it may be an event under clause 10 of the Higher Education Support (VET) Guideline 2015 which would require the RTO to re-credit substantial sums of money in excess of its current coverage for tuition assurance. This is particularly so in circumstances where, on 2 May 2016 the RTO provided information that its maximum coverage for tuition assistance is $7,500,000.00, but its VET FEE-HELP exposure is $32,317, for 2,015 students (being an average of $16, per student). This figure also does not include any exposure for the need to re-credit students that were not transitioned as required. ASQA is also concerned that students have not been transitioned in accordance with the Standards for NVR RTOs. Where an RTO fails to transition its students in accordance with clause 1.26 of the Standards for Registered Training Organisations it breach of a condition of their registration under section 22 of the NVR Act. The notice is set out at attachment A the notice requests certain information in relation the RTO. This information is not sought specifically or solely for the AAT proceedings as it may or may not be relevant to or filed in those proceedings, or only a fraction of the

22 information may be relevant to those proceedings, with the balance being irrelevant. It may be that the information satisfies ASQA that there is no basis for concerns regarding the RTO s resourcing, operations or financial viability in which case no further action would be necessary. Alternatively, it is possible that the information may be relevant to separate future decisions of ASQA. However, if ASQA assesses that any information obtained as a consequence of this process may assist the AAT in making its decision, ASQA would likely place the information before the AAT as required in accordance with its obligation to use its best endeavours to assist the AAT in carrying out its functions. [sic] 37 There was no objection to the tender of this objection record. I should record though that, last week, at an interlocutory stage, there was an application by the applicant, which I refused, for the issuing of a subpoena directed to Mr Barkey to attend and give evidence today. In support of that, reference was made to Haoucher v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 466 (Haoucher) (French J, as the Chief Justice then was). There may be circumstances, and Haoucher is an example of an acknowledgement of that, in which a subpoena might be issued. But it is to be remembered that Haoucher was decided prior to Minister for Immigration Local Government and Ethnic Affairs v Taveli (1990) 23 FCR 162 (Taveli) and further, with respect, that in Taveli, French J gave a dissenting judgment. 38 The decision record was admissible, in my view, under the Evidence Act 1995 (Cth) as part of the res gestae attending the making of the decision to issue the s 26 notice. The adducing of evidence further to that found in that record would have been contrary to views expressed by each of Davies and Hill JJ in Taveli. It would have been a gratuitous supplementation. For better or for worse, Mr Barkey chose to record such reasons as he had at the time and then only internally. Further, if the applicant s case is to be accepted, the calling of Mr Barkey would necessarily have exposed him to the invidious position of being required, even perhaps by acknowledging his identity, to answer questions which might have tended to incriminate him. I did not regard the issuing of a subpoena in these circumstances as in any way appropriate. 39 It is apparent enough that the notice was issued for multiple purposes, one of which undoubtedly admitted of the possibility, perhaps even probability, of using the information gathered for the purposes of the pending proceedings in the Tribunal. That was not, having regard to Saunders and Watson and what I have already further expressed, in any way an

23 improper purpose. To the contrary, it was a permissible purpose, once the nature of administrative review is understood. 40 That is not to say that it is impossible to conceive of circumstances where a procedural direction in the Tribunal might not be such that it would be unreasonable to issue a notice under a statutory information-gathering power. If, for example, the Tribunal, in the exercise of a considered value judgment as to what was reasonable, had already directed that particular information be furnished by a particular time, there would be much to be said for a conclusion that a notice issued pursuant, for example, to s 26, which required that same information to be furnished within a shorter timeframe, was not reasonable. That though is not this case. 41 I have already made reference to the information which came in the end to be provided on 13 May That is a convenient note upon which to turn to the question of reasonableness. To set aside the notice on the basis that the times allowed were unreasonable would require a conclusion that the decision to fix these times in the circumstances prevailing was unreasonable in the sense described recently in the joint judgment of Hayne, Kiefel and Bell JJ in Minister for Immigration and Multicultural Affairs v Li (Li) (2013) 249 CLR 332 at 364, [68]. If it were merely a case where reasonable people might reasonably have differed as to the fixing of the particular times a conclusion of unreasonableness would not be open. 42 As to that, hindsight is no teacher. One must look to the circumstances prevailing at the time of the decision. In that regard, the decision-maker here had the experience of an earlier ability on the part of the applicant to comply with the requirements, and they were hardly trifling, of the earlier s 26 notice within quite a short timeframe. Of course, it might be said that there was some history before then of being alerted to the interest of the Authority in that information. Nonetheless, Mr Barkey did not, on the evidence, have material before him which suggested some inability on the part of the applicant to comply within the times that he fixed. It is also a noteworthy feature of the decision that the times have been bifurcated. In other words, a staggered burden was imposed with the obvious end of thereby facilitating compliance. I do not see that the present circumstances give rise to unreasonableness as described in the joint judgment in Li. 43 It was also put that there was an alternative information-gathering power to be found in s 62 which ought to have been utilised. That power, though, is not one directed expressly to the

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