Refusal to Grant Provider Approval (Section 12): Tanyous v Secretary, NSW Department of Education

This case is similar to a previous case (see my previous post regarding CYU v Secretary, Department of Education) heard by the NSW Civil and Administrative Tribunal in which the applicant contested the use of assessment tests in assessing applications for provider approval. In CYU the Tribunal found that the National Law did not authorise the conduct of such tests but on public policy grounds allowed the evidence of the assessment to be used in the case.

In this case, the NSW Department of Education (the NSW regulator under the National Law) did not grant provider approval to the applicant (Tanyous) because it did not believe the applicant was a fit and proper person under section 12 because of the results of a written assessment undertaken by the applicant which indicated that he did not have the required knowledge and understanding of the legislative requirements that he would be required to implement as an approved provider. Accordingly, the applicant then applied for internal review and then review by the Tribunal of the decision of the Department. The applicant submitted to the Tribunal that the evidence of his assessment results should not be admitted, because it was illegally or improperly obtained, relying on the decision in CYU. The Department argued that the decision in CYU was incorrectly decided. The Tribunal, however, confirmed that the Department does not have such power, and the evidence of the applicant’s assessment results was illegally or improperly obtained. The Tribunal then considered whether evidence of that assessment should be allowed in evidence anyway on public policy grounds. The Tribunal did acknowledge that knowledge of the National Law is relevant to the assessment of fitness and propriety under section 12:

The Tribunal has considered the meaning of the expression “fit and proper” in many cases (see, for example, Brandusoiu v Commissioner of Police [2015] NSWCATAD 204 at [88]-[92]). For present purposes, it is sufficient to note that “fitness” has three components, one of which is knowledge: Hughes & Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127 at 156-157. Compliance with the National Law is expressly made relevant to fitness and propriety (see s 13(1)(a)), and knowledge of the National Law and the National Regulations facilitates such compliance. Such knowledge is relevant to whether a person is a fit and proper person to be involved in the provision of an education and care service. (para.31)

In considering whether to admit evidence of the assessment, the Tribunal stated that:

In any event, the question for the Tribunal is whether the applicant is a fit and proper person to be granted a provider approval. The responses provided by the applicant in his written assessment are probative of the issue of whether he has an adequate knowledge and understanding of the legislative requirements that he would be required to implement as an approved provider.
When exercising my discretion as to admitting the evidence of the written assessment, I take into account that exclusion of the evidence might lead to a person with inadequate knowledge of the National Law obtaining a provider approval. I accept the respondent’s submission that the objectives of the National Law are promoted if persons in management have a knowledge and understanding of the National Law and National Regulations. These objectives include ensuring the safety and wellbeing of children (see National Law, s 3(2)(a)). Factors supporting the exclusion of the evidence include that exclusion may protect the administration of justice and that it would or might discourage illegal or improper conduct by regulators (see Southern Equities Corp Ltd (in liq) v Bond (2001) 78 SASR 554; [2001] SASC 70, Lander J at 565 [75] and Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281 at 288).
Having balanced these factors, I consider that the public policy considerations which favour admission of the evidence outweigh the public policy considerations against admitting it (cf CYU at [72]). I give particular weight to the consideration that the admission of the evidence tends to promote the objective of the National Law to ensure the safety and wellbeing of children. (paras.42-5).
Accordingly, I have decided to admit the evidence of the applicant’s assessment.

The Tribunal then assessed whether the applicant was a fit and proper person under section 12:

I am not satisfied that the applicant is a fit and proper person to be involved in the provision of an education and care service (National Law, s 12(2)(b)). This is because his written assessment indicates a lack of knowledge and understanding of the National Law and National Regulations which makes him unfit for such involvement. He has not provided any evidence to indicate that his knowledge or understanding has changed since undergoing the assessment. To the contrary, in many instances, he has defended his answers as being adequate.
In these circumstances, I have decided to confirm the Secretary’s decision to refuse to grant the applicant a provider approval. (paras.46-7)