Cancellation of Childcare Benefit Approval: Alekdit Pty Ltd (trading as Giggling Day Care Centre) and Secretary, Department of Education and Training

This case before the Administrative Appeals Tribunal concerned an application by Alekdit Pty Ltd trading as Giggling Day Care Centre (“the Applicant”), for a review of the decision of the Commonwealth Department of Education and Training (the "Respondent") to cancel the approval of the Applicant under family assistance law for the receipt of Child Care Benefit allowance. Before the Tribunal, the Applicant was represented by Mr Awan Bol, the director of the applicant company.

In November 2017, the Education Standards Board (the South Australian Regulator under the National Law) cancelled the provider approval of the Applicant. The Applicant did not seek a review of that decision. The Tribunal observed that:

The Commonwealth approval regime is not responsible for the grant of licence, but is part of the criteria for a parent's eligibility for Commonwealth child care fee assistance. As at the time of the internal review process, a condition of a payment of that assistance is that the Child Care Centre be registered, and pursuant to section 196(3) of A New Tax System (Family Assistance)(Administration) Act 1999 (“the Administration Act”), it must be compliant with all applicable requirements imposed by a law of the State in which the service operates. Hence if a Child Care Centre's registration is cancelled, it ceases to comply with State law and it follows that they are no longer eligible for payment of Child Care Benefit from the Commonwealth and such payment will consequently be cancelled pursuant to section 200(1)(e) of the Administration Act. (para.9)

The Tribunal dismissed the Applicant's application for review commenting that:

...it was apparent, that from the material before the Tribunal, the applicant had not pursued any challenge to the cancellation of its registration as a Day Care Centre. Therefore at the commencement of the hearing the applicant was invited to open his case and identify the issues for the consideration of the Tribunal, together with the evidence and the witnesses he wished to call.
It was immediately apparent that the applicant did not have a clear understanding of the legislative framework under which both State and Commonwealth bodies operate and the separate roles, responsibilities and functions of each. Nor did he have an understanding of the different jurisdictions of the State and Commonwealth in appealing their respective decisions within the legislative framework. The Tribunal explained repeatedly the separate roles of each and their respective jurisdictions.
During those submissions Mr Hertzberg [representing the Department] explained that the respondent had previously sought to clarify the separation of the jurisdictions with the applicant, and had sent to him the necessary paperwork to pursue an application in the District Court to review the decision to cancel Giggling Day Care Centre's registration, and advised the applicant that the respondent would not oppose an application for extension of time within which to bring the application, and indeed supports such an application for extension of time on the basis that the applicant had misunderstood the process and appealed in the wrong jurisdiction for the remedy he sought.
When asked by the Tribunal why the applicant had not accepted the invitation of the respondent, he said he did not want to proceed in the State courts and regarded the Commonwealth as responsible for the cancellation of Giggling Day Care Centre's registration. He wanted the Commonwealth, and now the Tribunal, to decide the issue of the cancellation of the registration. When asked if successful what orders the applicant was inviting the Tribunal to make, and he responded “reregistration of Giggling Day Care Centre's licence.”
It was clear that the applicant's application before the Tribunal was not directed to the decision of 19 December 2017 and the ARO’s decision of 22 February 2018 confirming cancellation of the child care assistance. The application, it was plain, was directed to seeking orders reinstating Giggling Day Care Centre's registration which was not within the jurisdiction of the Tribunal. The applicant maintained that the Commonwealth was responsible for the cancellation. He would not pursue the issue before the State courts and he would pursue the matter by appeal before the Federal Court if unsuccessful....
The respondent indicated that the respondent had made those responsible from ESB for the inspection of the applicant's places of work to give evidence and be cross-examined in these proceedings. But the question remained to what end. The Tribunal was not prepared to have witnesses placed through the ordeal of giving evidence and be cross-examined about allegations of discrimination, racism and misconduct when those allegations had no bearing on whether the decision to cancel the Commonwealth approval under family assistance law in respect of Giggling Day Care Centre was the correct or preferable decision....
At no time did the applicant raise, as an issue for the Tribunal, any relevant complaint or demonstrate any error by the respondent in the cancellation of family care assistance.
In those circumstances the Tribunal finds that the application is vexatious, wholly misconceived and lacking in substance and has no reasonable prospect of success, and is otherwise an abuse of the process of the Tribunal.
The Tribunal orders, pursuant to section 42B(1) of the Act, that the application is dismissed. (paras.23-27, 29, 31-33)