Refusal to Grant Provider Approval (s.12): CYU v Secretary, Department of Education

This case is similar to that heard by the same Tribunal (NSW Civil and Administrative Tribunal) recently: CZR v NSW Department of Education (see my blog post). However, the case raises some questions about the lawfulness of compulsory assessment sessions for approvals under the National Law.

The case involved a review of a decision by the NSW Department of Education (NSW Regulatory Authority under the National Law) to not grant provider approval to the applicant, CYU. Following the participation in a complusory assessment process, conducted by the Department, the individual, who was to manage or control the applicant’s family day care service (“Mr M”), was assessed not a fit and proper person to be involved in the provision of an education and care service.

During the Tribunal hearing the issue was raised as to whether the Department had power to require Mr M to undergo an assessment and therefore use the assessment results. The Tribunal found that the assessment was not authorised by sections 14 or 261, as submitted by the Department. Those provisions did not allow for such coercive powers to be exercised by the Regulatory Authority in relation to applicants and also that the Department did not have power to impose a fee for such assessments:

It follows... that I am of the view that the evidence of Mr M’s assessment results was unlawfully obtained by the respondent. At the very least, it was improperly obtained. This then raises the issue of whether the evidence should be admitted and, if so, what weight should be given to it (para.32)

In this case the Tribunal exercised its discretion, on public policy grounds, to allow the evidence of the assessment to be used:

In determining whether to admit the evidence of Mr M’s assessment responses and assessment results, I have given great weight to the guiding principles that the rights and best interests of the child are paramount and that best practice is expected in the provision of education and care services. In accordance with these principles, I find that the public policy considerations which favour admission of the evidence outweigh the public policy considerations against admitting it. This includes the public policy of protecting the applicant from unlawful and improper conduct (Southern Equities Corp Ltd (in liq) v Bond (2001) 78 SASR 554; [2001] SASC 70 at [113]). Whilst the unlawful conduct of the respondent is concerning, this is not a case where there has been “a serious and deliberate infringement of legal rights” to use the language of Phoenix Eagle Company Pty Ltd v Tom McArthur Pty Ltd [2017] WASC 130. Further, I anticipate that the administration of justice will be protected by the respondent seeking advice about the issues raised in this decision and taking appropriate action in respect of the procedures the Secretary adopts in the future (para.72)

Based on the assessment of the evidence, the Tribunal decided to uphold the decision of the Department to not grant provider approval to CYU:

The applicant has not satisfied me that Mr M is a fit and proper person to be involved in the provision of an education and care service (within s 12(2)(a) of the National Law). This is because Mr M’s assessment results indicate that he has a deficient knowledge and understanding of the National Law and National Regulations and is therefore not “fit” for such involvement. In these circumstances, I am required, by s 15(2) of the National Law, not to grant the applicant a provider approval (para.74)

It should be noted that the difference between this case and CZR v Secretary, Department of Education, is that the issue of the legality of a compulsory assessment process for applicants was not raised in CZR. This case has significance as it raises the issue of the lawfulness of such compulsory assessment processes. The Tribunal found that the National Law and Regulations did not give the Department authority to require applicants for provider approval to undertake a compulsory assessment of their knowledge and understanding of the National Law and the Regulation.