Galpin v Chief Executive Officer of the Australian Skills Quality Authority

• Jurisdiction: Australia Federal only
• Judgment Date: 17 March 2023
• Neutral Citation: [2023] FCA 223
• Date: 17 March 2023
• Court: Federal Court

Federal Court of Australia

Galpin v Chief Executive Officer of the Australian Skills Quality Authority [2023] FCA 223

File number(s):	VID 144 of 2021
Judgment of:	WHEELAHAN J
Date of judgment:	17 March 2023
Catchwords:	ADMINISTRATIVE LAW – appeal from a decision of the Administrative Appeals Tribunal to affirm the respondent’s decision to cancel the appellant’s registration as a registered training organisation under the National Vocational Education and Training Regulation Act 2011 (Cth) — whether the Tribunal erred in its interpretation of the Act and relevant legislative standards — applicant alleged errors of law by the Tribunal — whether the applicant’s failure to have in place adequate mechanisms for monitoring visa compliance of students was an irrelevant consideration under the legislative standards — appeal allowed
Legislation:	Administrative Appeals Tribunal Act 1977 (Cth) s 44 Education Services for Overseas Students Act 2000 (Cth) s 8 National Vocational Education and Training Regulation Act 2011 (Cth) sections 2A, 3, 17, 18, 21-27, 32, 33, 39, 93, 94, 116, 117, 157, 185, 186, 191A, 199, 203, 216 National Vocational Educational and Training Regulations 2011 (Cth) reg 5 Migration Regulations 1994 (Cth) reg 1.03, Schedule 2, cl 500.211 Standards for Registered Training Organisations (RTOs) 2015 (Cth)
Cases cited:	Beckwith v R [1976] HCA 55; 135 CLR 569 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 Hird v Chief Executive Officer of Australian Sports Anti-Doping Authority [2015] FCAFC 7; 227 FCR 95 King Eeducational Service Pty Ltd v Chief Executive Officer of the Australian Skills Quality Authority (No 3) [2021] FCA 692 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; 113 CLR 475 Newcastle City Council v GIO General Ltd [1997] HCA 53; 191 CLR 85 Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286 Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156
Division:	General Division
Registry:	Victoria
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	106
Date of hearing:	1 March 2022
Counsel for the Applicant:	Dr K Hanscombe KC and Mr M Guo
Solicitor for the Applicant:	Jessop & Komesaroff Lawyers
Counsel for the Respondent	Mr M Rebikoff and Ms N Molyneux
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

	VID 144 of 2021
BETWEEN:	MAXINE ELIZABETH GALPIN, TRADING AS AUSTRALIAN ONLINE RACING ACCREDITATION OR A.O.R.A. Applicant
AND:	CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN SKILLS QUALITY AUTHORITY Respondent
order made by:	WHEELAHAN J
DATE OF ORDER:	17 March 2023

THE COURT ORDERS THAT:

1. The decision of the Administrative Appeals Tribunal dated 25 February 2021 in matter 2019/0521 is set aside.

2. The matter is remitted to the Administrative Appeals Tribunal for reconsideration according to law.

3. The respondent pay the applicant’s costs of the application.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1. The applicant conducted a business in her own right as a registered training organisation (or, RTO) under the business name “Australian Online Racing Accreditation”. The nature of the business was to deliver vocational education and training packages by distance learning, leading to the conferral of certificates or a diploma in the horse racing industry. The lawful conduct of the applicant’s business required that she be registered as a training organisation under the National Vocational Education and Training Regulation Act 2011 (Cth) (NVR Act).

2. The applicant appeals a decision of the Administrative Appeals Tribunal made 25 February 2021. By its decision, the Tribunal affirmed a decision of the Australian Skills Quality Authority (ASQA) to cancel the applicant’s registration under the NVR Act. The appeal is brought in the Court’s original jurisdiction pursuant to s 44 of the Administrative Appeals Tribunal Act 1977 (Cth) (AAT Act) and is an appeal on a question of law. By her amended notice of appeal, the applicant raises eight questions of law which I will identify later in these reasons.

3. For the following reasons I have determined that the appeal should be allowed.

Overview of the legislation

4. The broad plan of the NVR Act is to regulate vocational education and training, which is referred to in the NVR Act and other instruments by the acronym VET. The use of acronyms in this area is prevalent, and I will try and keep the use of other acronyms to a minimum. This area also has its own lexicon where ordinary terms having apparent meaning must be scrutinised to ascertain whether there is any special or defined meaning. It must be said that the mode of regulation, the number of bodies involved, the number of documents having regulatory significance, and the language employed in those documents is somewhat complex.

5. The NVR Act establishes a scheme of registration and regulation of training organisations that are subject to its provisions. The regulator is referred to in the NVR Act as the National VET Regulator. At the time of the primary decision under review by the Tribunal, ASQA was the name under which the National VET Regulator operated. In relation to the different manifestations of ASQA as a result of legislative amendments and transitional provisions, see King Eeducational Service Pty Ltd v Chief Executive Officer of the Australian Skills Quality Authority (No 3) [2021] FCA 692 at [11]-[12].

6. The functions of the National VET Regulator are specified under s 157 of the NVR Act, and include –

157 Functions of the National VET Regulator

(1) The National VET Regulator has the following functions:

(a) to register an organisation as an NVR registered training organisation;

(b) to accredit courses that may be offered and/or provided by registered training organisations;

(c) to carry out compliance audits of NVR registered training organisations;

(d) to promote, and encourage the continuous improvement of, a registered training organisation’s capacity to provide a VET course or part of a VET course;

…

(r) to do anything incidental to, or conducive to, the performance of any of the above functions.

7. The function in s...