Civil and Administrative Tribunal New South Wales Medium Neutral Citation: National Education Childcare Services P/L v Secretary Department of Education [2024] NSWCATAD 105 Hearing dates: 6 October 2023, 30 November 2023 Date of orders: 19 April 2024 Decision date: 19 April 2024 Jurisdiction: Administrative and Equal Opportunity Division Before: J McAteer, Senior Member Dr F Duffy, Senior Member Decision: (1) The decision of the respondent is affirmed. Catchwords: EDUCATION and Care Services National Law – Operator approval – Fit and proper – whether applicant possesses sufficient knowledge skill and experience to be considered fit and proper- whether application and assessment process was unfair – merits review Legislation Cited: Administrative Decisions Review Act 1997 Children (Education and Care Services) National Law (NSW) No 104a Children (Education and Care Services National Law Application) Act 2010 Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2013 Education and Care Services National Regulations 2011 Cases Cited: Australian Broadcasting Tribunal v Bond (1980) HCA 33 170 CLR 380 CYU v Secretary Department of Education [2017] NSWCATAD 290 CYD v Secretary of the Department of Education NSW [2017] NSWCATAD 190 CZR v Department of Education, Early Childhood and Care Directorate [2017] NSWCATAD 282 Hughes v Vale Pty Ltd v NSW (No.2) [1955] HCA 28; (1955) 93 CLR 127 Texts Cited: None cited Category: Principal judgment Parties: National Education Childcare Services P/L (Applicant) Secretary Department of Education (Respondent) Representation: Counsel: M Vincent (Applicant) Solicitors: NSW Crown Solicitor (Respondent) File Number(s): 2023/00174176 Publication restriction: Nil Publication restriction on reasons (Confidentiality order made under s 62 Civil and Administrative Tribunal Act 2013 in respect of access to the Transcript of the confidential session of the hearing- access limited to the respondent, their legal advisors after application to the Divisional Registrar). Reasons for decision Introduction 1. The applicant is a Company seeking to operate a Family Day Care business in suburban Sydney. As such the applicant (by it's Director) seeks approval by the respondent under the Children (Education and Care Services) National Law NSW No 104a (the National Law). The respondent is the approver and regulator of matters under the National Law within the State of New South Wales. 2. The applicant's Director applied for Provider Approval for the Company 'National Education Childcare Services Pty Ltd'. Provider Approval is one of the necessary preconditions to being allowed to operate an education and care service. The decision to refuse provider approval was made on the basis that the respondent found that the applicant's director (Ms R Zraika), as the person who would have management control of the proposed service on behalf of the applicant Company, was not a fit and proper person as defined under a provision of the National Law. Put plainly, the respondent was not satisfied that Ms Zraika possessed the requisite knowledge of the necessary measures to ensure the safety, health and care well being of the children enrolled in the service, and ensure the improvement of those children's educational and developmental outcomes. 3. The applicant applied to this Tribunal seeking an external review of the decision that they were not a fit and proper person within the meaning of the National Law, and the subsequent refusal to grant provider approval. 4. The question to be determined by the Tribunal is whether Ms Zraika as the Director of the applicant Company National Education Childcare Services Pty Ltd, is a fit and proper person to operate a childcare service, as defined in the National Law. If the Tribunal determines that she is a fit and proper person then the decision will be set aside. However if the Tribunal determines that Ms Zraika is not a fit and proper person, having regard to the respondent's requirements (including any statutory provisions), or for any other reason on review we find that the respondent's decision is the correct and preferable decision, then the decision will be affirmed. Background 1. Ms Zraika is seeking to run a family daycare business and formed a Company (National Education Childcare Services Pty Ltd) for that purpose. The Tribunal understands that Ms Zraika is the sole Director of that Company. After conducting three separate knowledge tests with Ms Zraika, the respondent determined that her results showed that she did not posses or demonstrate that she had the requisite knowledge or ability to provide quality education and care services to children. The respondent found that as a result the safety health and well being of children could not be ensured and that children would not receive improved education and developmental outcomes from attending education and care services run by the Company. As a result the respondent made a finding that Ms Zraika was not a fit and proper person for the purpose of the National Law due to this failure to possess and demonstrate the requisite knowledge or ability. 2. The relevant section of the National law provides: 12 Applicant must be fit and proper person (1) An applicant who is an individual must satisfy the Regulatory Authority that the applicant is a fit and proper person to be involved in the provision of an education and care service. (2) If the applicant is not an individual, the applicant must satisfy the Regulatory Authority that— (a) each person who will be a person with management or control of an education and care service to be operated by the applicant is a fit and proper person to be involved in the provision of an education and care service; and (b) the applicant is a fit and proper person to be involved in the provision of an education and care service. (3) The head of a government department administering an education law of a participating jurisdiction is taken to be a fit and proper person for the purposes of this Part. 1. Section 13 of the National law sets out the criteria to be taken into account in determining whether a person is 'fit and proper' to be given provider approval. The section provides: 13 Matters to be taken into account in assessing whether fit and proper person (1) In determining whether a person is a fit and proper person under this Division, the Regulatory Authority must have regard to— (a) the person's history of compliance with— (i) this Law as applying in any participating jurisdiction; and (ii) a former education and care services law of a participating jurisdiction; and (iii) a children's services law of a participating jurisdiction; and (iv) an education law of a participating jurisdiction; and Note— If a person has been served with an infringement notice for an offence under this Law, and the person has paid the penalty, the Regulatory Authority cannot consider that conduct when determining whether the person is fit and proper. See section 291(5). (b) any decision under a former education and care services law, a children's services law or an education law of a participating jurisdiction to refuse, refuse to renew, suspend or cancel a licence, approval, registration or certification or other authorisation granted to the person under that law; and (c) either— (i) any prescribed matters relating to the criminal history of the person to the extent that history may affect the person's suitability for the role of provider of an education and care service; or (ii) any check of the person under a working with vulnerable people law of a participating jurisdiction; and (d) whether the person is bankrupt, or has applied to take the benefit of any law for the relief of bankrupt or insolvent debtors or, in the case of a body corporate, is insolvent under administration or an externally-administered body corporate. (2) Without limiting subsection (1), the Regulatory Authority may have regard to— (a) whether the person has a medical condition that may cause the person to be incapable of being responsible for providing an education and care service in accordance with this Law; and (b) whether the financial circumstances of the person may significantly limit the person's capacity to meet the person's obligations in providing an education and care service in accordance with this Law; and. (c) whether the person has the management capability to operate an education and care service in accordance with this Law; and (d) any of the following actions taken under the A New Tax System (Family Assistance) (Administration) Act 1999 of the Commonwealth in relation to a child care service approved under that Act, operated by the person or in relation to which the person was a person with management or control— (i) any sanction imposed under section 200 of that Act; (ii) any suspension imposed under section 201A of that Act; (iii) any infringement notice given under section 219TSI of that Act. (3) Nothing in subsection (1) or (2) limits the circumstances in which a person may be considered not to be a fit and proper person to be involved in the provision of an education and care service. Site footer We acknowledge the traditional owners of this land and pay respect to Elders, past, present and emerging. What's new Accessibility Site map Copyright Disclaimer 1. The respondent relied upon an express power to require an applicant for provider approval to undergo a knowledge assessment as set out in s 14 of the National Law. That section provides: 14 Regulatory Authority may seek further information (1) For the purpose of carrying out an assessment as to whether a person is a fit and proper person, the Regulatory Authority may— (a) ask the person to provide further information, including for the purposes of assessing the person's knowledge of the National Quality Framework; and (b) undertake inquiries in relation to the person; and (c) by written notification, require the person to undergo an oral or written assessment of the person's knowledge of the National Quality Framework. (2) If the Regulatory Authority asks the applicant for further information under this section, the period from the making of the request until the provision of the further information is not included in the period referred to in section 15 for the Regulatory Authority to make a decision on the application. (3) If the Regulatory Authority requires the applicant to undergo an assessment under this section, the period from the giving of the notification until the conduct of the assessment is not included in the period referred to in section 15 for the Regulatory Authority to make a decision on the application. 1. At the time of the three assessments of Ms Zraika's knowledge, the provisions of s 14 enabling the respondent to 'require' an applicant to undergo an oral or written assessment were not in force. However the respondent was still required to determine whether an applicant was a fit and proper person by having the requisite knowledge for the purposes of the National Law. As we understand the application before the Tribunal the issue for determination is whether on the basis of all the evidence and material before us, is the applicant (Ms Zraika for the purpose of the determination) fit and proper to be granted the provider approval. 2. The background is also complicated by the position that in an earlier application for provider approval in 2017 (which lapsed) Ms Zraika was adjudged by the respondent to be a fit and proper person to be approved to deliver the services necessary as an operator of centre based services but not family day care services. She had failed to satisfy the respondent that she had sufficient knowledge for family day care services but on reassessment was deemed to have the necessary knowledge for centre based services and was granted approval on that limited basis. 3. However as Ms Zraika never took up that approval within 12 months (plus an additional period of grace) for reasons which were contested in the current hearing and outlined further below, that application lapsed. Those events caused the application, which is the subject of these proceedings, to be made. The legislative scheme 1. The National Law is expressed in the Note to the Long Title as: The Education and Care Services National Law is applied and modified as a law of NSW by the NSW Children (Education and Care Services National Law Application) Act 2010. 2. The Children (Education and Care Services National Law Application) Act 2010 (the Application Act) has a long title which states that it is: An Act to apply as a law of this State a national law relating to the regulation of education and care services for children. 1. Whilst the Application Act has no objects section, it can be gleaned from the long title that a purpose of the Act is to apply law, which is directed towards relating to the regulation of education and care services for children. 2. The objects section of the National Law is expressed as objectives and guiding principles at section 3 and goes to the provision of a quality framework, which improves and measures the provision of services to children. The section states: 3 Objectives and guiding principles (1) The objective of this Law is to establish a national education and care services quality framework for the delivery of education and care services to children. (2) The objectives of the national education and care services quality framework are— (a) to ensure the safety, health and wellbeing of children attending education and care services; (b) to improve the educational and developmental outcomes for children attending education and care services; (c) to promote continuous improvement in the provision of quality education and care services; (d) to establish a system of national integration and shared responsibility between participating jurisdictions and the Commonwealth in the administration of the national education and care services quality framework; (e) to improve public knowledge, and access to information, about the quality of education and care services; (f) to reduce the regulatory and administrative burden for education and care services by enabling information to be shared between participating jurisdictions and the Commonwealth. (3) The guiding principles of the national education and care services quality framework are as follows— (a) that the rights and best interests of the child are paramount; (b) that children are successful, competent and capable learners; (c) that the principles of equity, inclusion and diversity underlie this Law; (d) that Australia's Aboriginal and Torres Strait Islander cultures are valued; (e) that the role of parents and families is respected and supported; (f) that best practice is expected in the provision of education and care services. 1. The National Law provides under Part 3 for a natural person or company to operate an education and care service, which includes family day care services. An applicant must obtain service approval under Part 3 in order to operate an education and care service. 2. The process as taken from the National Law provides that under Part 2 an applicant must have provider approval from the regulatory body, which is defined in section 5. Under the Application Act the Regulatory Authority is taken to be the Secretary of the Department of Education. 9 Regulatory Authority For the purposes of the definition of Regulatory Authority in section 5 of the Children (Education and Care Services) National Law (NSW), the Director-General of the Department of Education and Communities is declared to be the Regulatory Authority for this jurisdiction for the purposes of that Law. 1. Section 51 of the National Law addresses conditions of service approval. The section provides for specified mandatory and additional conditions of service approval all focused on the objects of the National Law. 2. The Regulatory Authority has a number of consequential powers and functions under the National Law following the granting of service approval. These are in the nature of application and refusal, amendment, transfer, suspension, cancellation, application for waiver of approval and temporary waiver. These matters are set out at Divisions 1 – 6 (inclusive) of Part 3 of the National Law. 3. We observe that the conditions of approval, requirements of approval and factors to be established under sections 12 and 13 are all tailored towards the objects of the National Law. These are to ensure that any approved service provider is able to provide quality education and care services to children to ensure the health, safety, care and well-being of children and improve the educational and developmental outcomes for children attending such services. 4. The grounds for the refusal focused on the provisions under s 15 (1) (b) and s 15 (2) of the National Law. Those sections provide: 15 Grant or refusal of provider approval (1) On an application under section 10, the Regulatory Authority may— (a) grant the provider approval; or (b) refuse to grant the provider approval. Note— A provider approval is granted subject to conditions in accordance with section 19. (2) The Regulatory Authority must not grant a provider approval unless the Authority is satisfied as to the matters in section 12. Jurisdiction 1. The jurisdiction of the Tribunal arises from the operation of both the National Law and the Application Act. The Tribunal has previously determined that these matters under the National Law fall within the Tribunal's general review jurisdiction. Whilst the matter is not an administrative review the Tribunal adopts a similar process to an administrative review being a merits review to determine the correct and preferable decision. The role and purpose of the Tribunal in dealing with this external (merits) review became a matter that the parties returned to in the hearing at various times. This was essentially because what the decision was based upon was what we refer to as a 'set of competencies', which the respondent says the applicant failed to demonstrate. These competencies being knowledge and ability in the areas necessary for provider approval, that is competencies and knowledge to enable the approved provider to provide quality education and care services to children in a manner that would ensure their safety, health and well being, and improve the educational and developmental outcomes for those children. 2. The National Law provides for external review of the material decision. In this instance the provision under Section 192 (a) provides: 192 Reviewable decision—external review A reviewable decision for external review is— (a) a decision of the Regulatory Authority made under section 191 (other than a decision in relation to the issue of a compliance direction or a compliance notice); or … 1. Section 191 however enlivens the power under s 192 (a). The applicant applied for Internal Review of the decision to refuse provider approval in accordance with s 190. Under s 191 they sought Internal Review. 190 Reviewable decision—internal review A reviewable decision for internal review is a decision of the Regulatory Authority under this Law as applying in any participating jurisdiction— (a) to refuse to grant a provider approval or a service approval; or … 191 Internal review of reviewable decisions (1) A person who is the subject of a reviewable decision for internal review may apply to the Regulatory Authority in writing for review of the decision. … 1. It is therefore through this route that the applicant obtains the right to apply for external review to the Tribunal. Section 193 of the National Law provides for the manner of external review of a decision of the Regulatory Authority: 193 Application for review of decision of the Regulatory Authority (1) A person who is the subject of a reviewable decision for external review may apply to the relevant tribunal or court for a review of the decision. (2) An application must be made within 30 days after the day on which the applicant is notified of the decision that is to be reviewed. (3) After hearing the matter, the relevant tribunal or court may - (a) confirm the decision of the Regulatory Authority; or (b) amend the decision of the Regulatory Authority; or (c) substitute another decision for the decision of the Regulatory Authority. (4) In determining any application under this section, the relevant tribunal or court may have regard to any decision under this Law as applying in another participating jurisdiction of a relevant tribunal or court of that jurisdiction. 1. Section 5 of the National Law defines relevant tribunal or court. 5 Definitions (1) In this Law— …. relevant tribunal or court, in relation to a participating jurisdiction, means the tribunal or court declared by a law of that jurisdiction to be the relevant tribunal or court for the purposes of this Law or a provision of this Law; 1. Section 8 of the Application Act provides that NCAT is the relevant Tribunal for the purpose of such an external review. 8 Relevant tribunal or court For the purposes of the definition of relevant tribunal or court in section 5 of the Children (Education and Care Services) National Law (NSW): (a) the District Court is declared to be the relevant tribunal or court for this jurisdiction for the purposes of section 181 of that Law, and (b) the Civil and Administrative Tribunal is declared to be the relevant tribunal or court for this jurisdiction for the purposes of Part 8 of that Law. (Emphasis added) 1. The application to the Tribunal following internal review was received on 30 May 2023. Having been notified of the decision by email on 19 May 2023, the decision itself dated the same date, the application has been received within the 28 day period provided for under cl 23 (3) (b) of the Civil and Administrative Tribunal Rules 2014. The Hearing 1. The matter was heard over two sitting days. On the first day Ms Zraika gave evidence as the relevant nominee of the applicant and was subject to lengthy cross examination. On the second sitting day the respondent's witness Ms Greenfield gave evidence and was subject to lengthy cross examination. Detailed oral submissions were also made by the legal representatives for both parties. 2. At the beginning of the hearing the applicant outlined that on the available evidence it was within the Tribunal's discretion to grant the application having regard to s 13 (2) (c ) of the National Law. Documentary Evidence 1. The applicant filed the following material in addition to their oral evidence: * Statement of R Zraika dated 24 August 2023 (with attachments) Exhibit A - 1. * Supplementary Statement of R Zraika dated 29 September 2023 Exhibit A 2'. * Statement of D Zraika dated 24 August 2024 Exhibit A 3'. * Applicant's bundle of documents - 9 items Exhibit A 4'. 1. The respondent filed the following material: * Open Bundle of documents – 379 folios 'Exhibit R 1'. * Affidavit of Dayna Greenfield 14 September 2023 Exhibit 'R-2' * Email sent to applicant at a 'hotmail' email address 13 September 2021 Exhibit 'R-3' * Email sent to applicant at a 'hotmail' email address 10 August 2021 Exhibit 'R-4' * Copy of staff listing / profile website page of Cogent Lawyers Exhibit 'R-5' The respondent also filed confidential material (concerning the academic assessment process) – Exhibit 'RC-1'. The existence of this material was not confidential and a copy was provided to the applicant's Counsel on an undertaking not to discuss or disclose the contents to any person including his client – but to consider the material for the purpose of providing submissions to the Tribunal. Evidence at hearing 1. The applicant representative Ms Zraika, Director and Principal of National Education Childcare Services Pty Ltd gave evidence at the hearing. In Evidence in chief she adopted her two statements Exhibits 'A-1' and 'A-2' as true and correct. 2. The witness was taken to page 147 of the respondent's bundle (Exhibit 'R-1') and asked about the invitation to participate in an online assessment. In respect of the invitation the witness said that there were technical issues with the computers on the day of the test. The witness said that the officials on the day advised that there were problems with the computers and that the test started late. 3. The witness said that she left eight questions unanswered when the test time was completed. She said that she believed that she did not have enough time to answer the unanswered questions because of the late start to the test. 4. In cross examination the witness was asked about her CV as set out at pages 64 – 68 of 'R-1'. The witness confirmed that of the training and technical qualifications listed on page 66, the first two (Business Certificate III in customer service 2007 and Certificate III in customer contact 2007) were 'in-house' qualifications for courses done with the Commonwealth Bank of Australia (CBA). The witness was working part time with the CBA at this time as they were also studying at University. 5. When asked whether she ever worked full time at the CBA the witness said that she only ever worked part time for about three to four years whilst studying. She mainly worked in customer service and agreed with the proposition that she would not describe her role as a management role. However the witness did say that she performed management roles at the CBA. The witness was taken to pages 89-91 of Exhibit 'R-1' whereby she provided answers to managerial type questions in the respondent's questionnaire. The witness conceded that her answer in page 90 where she referred to a 'Management Role at Commonwealth Bank of Australia', could have been answered with more detail. 6. The witness was asked about her role at her employer 'Cogent Lawyers' which is a law practice owned and run by members of her extended family. Exhibit 'R-5' (see [32] above) was referred to which showed four staff. The witness said that there were five employees in total and that three of these (and sometimes four) were Solicitors. The witness said that the Principal Solicitor is her brother, another member of staff shown on 'R-5' is a Solicitor and the witness is herself a Solicitor. The fourth person shown on 'R-5' is the Practice Manger. Whilst the webpage shows three Solicitors on staff the witness said that sometimes agents are called upon. The witness was asked about this evidence in the context of other statements that she was a 'senior lawyer'. The witness said that she was admitted in 2012 and had, prior to her current position worked at another law firm. In respect of being a Senior Lawyer at her current employer the witness said that this occurred about six or seven years ago. 7. In respect of management experience in the law firm the witness referred to the firm having various 'Departments' which cover different areas of client work. The witness specialises in immigration work however they also supervise the office manager and the paralegal. On further questioning it became clear that the office manager also doubled as the paralegal who was the sister in law of the witness. The witness said that she was also required to performance manage her sister in law. When asked whether she ever had to be involved in a managerial capacity in disciplinary matters the witness referred to prior incidents with staff who no longer worked in the practice. 8. Questions were put concerning experience as a hairdresser as referred to in Exhibit 'A-2'. The witness said that she was a sole trader from 2013 to 2016 as a hairdresser and had a line of work as a hairdressing wholesaler. It appeared that the witness worked both for the law firm and in her own hair wholesaling business during an overlapping period. 9. Questions were put to the witness concerning her interview with the respondent's officers as set out at pages 192-197 of 'R-1'. At page 195 it is recorded that most of the experience in child care was obtained at 'Birralee' as a volunteer with only a couple of weeks experience at 'Oz Education'. The witness said that the 'Oz Education' experience was when she was completing her Diploma and that she did volunteering at Oz Education prior to completing her diploma. The witness said that she volunteered when special events and community events were being run, such as at Christmas time and Easter. The witness said that she did more than 10 full days over a two year period. The witness said that the Director of that business was a friend and a client of hers. The witness stated in her evidence that in order to truly understand the industry she took it upon herself to go and visit Oz Education. 10. The witness said that her time at Birralee was until the end of 2016. In the Diploma she was required to perform 120 hours and that she was able to arrange this time as her sister was a Director of Birralee. The witness said that she most likely did more than 120 hours. The witness stated that she was a very entrepreneurial person and that she had researched the matter to see if there was a business opportunity. In 2017 the witness did more volunteering at Birralee. 11. The witness as taken to page 90 of 'R-1' where the qualification and work experience material was recorded by her. The witness said that she spent 10 minutes filling the information out. The witness believed that she had given prior information about Birralee and as this was the second application she only listed Birralee experience from 2017 or after 2017. The witness said that she continued to volunteer at Birralee up until the time that the centre was closed by NSW Health. 12. In mid 2022 the witness said that her sister opened a consulting business which gave advice on setting up childcare businesses. The witness said that she worked with her sister and obtained experience of centres being set up from scratch through to approval stage. The witness said that she looked after some of the legal matters that arose in these processes in that context and was as a result able to build her knowledge and experience about these centres. One example the witness cited concerned the business 'Three Little Birds'. The witness said that her sister was initially a Director of this Company. After a child care centre was opened an offer came to be a Director until another Director could be found. The witness said that her sister is no longer a Director and that business received provider approval in May 2023, from memory. 13. The witness gave evidence about her knowledge assessment which was at the centre of her refusal and basis for her internal and external review. The witness said that it was a 75 minute assessment which started 20 minutes to half an hour late. The witness said that the timer was built into the exam software. At the end of the originally stipulated time the computer 'shutdown' and said 'session ended'. The witness said that a supervisor standing in the exam room announced the end of the exam. However, the witness said that her reference to four minutes in the email was inaccurate and that it was four minutes and 47 seconds (rounding up to 5 minutes) not four minutes. 14. The witness explained that during the exam she and the other examinees had online access to Legislation and Regulations but she was unable to use the 'F6' function to search them. The witness said that during the exam there were interruptions and that there was five minutes remaining when they called time. In reference to the evidence about eight questions still to be completed when time was called, the witness said that she fully intended to complete those answers in full in the remaining time. The witness said that the clock counter still showed four minutes and 43 seconds remaining at that time. The witness said that the supervisor told her that she would 'make a note' (about the time matter). 15. Page 220 of 'R-1' is a copy of an email that the witness said that she sent from her car immediately following the exam. The email refers to checking the time from a right hand 'tool bar' on the screen. The email indicates that according to this tool bar the exam finished 4 minutes early. The witness advised that during the exam there were interruptions during the exam and she was adamant that there was five minutes remaining and that she wanted to complete the answers in full and a 'read over' of the questions. During this evidence the hearing noted that page 45 of Exhibit 'R-2' indicates that Ms Zarika logged into the system at 10:02am, started the exam at 10:06am and completed the exam at 11:21am. 16. The cross examination continued on a topic about the earlier partial approval and the Show Cause Notice that Ms Zraika maintained that she did not receive. This evidence concerned the creation of an email account for purposes of the business but that the account had not be used or accessed for some time when the respondent communicated this important information to her via the email account in 2021. 17. The witness said that she obtained provider approval in 2017 and had 12 months to begin operating the service. The witness said that she tried a few times to access the relevant email address around 2018. The evidence was that Ms Zraika did not receive the Show Cause Notice email in September 2021. The respondent put it to the witness that they served the Notice to that specific email address because the entity was Company and that their constitution provides for notices to be served by email. The witness gave evidence that she could not access her (that) email. Reference was made to pages 31,33 and 35 of Exhibit 'R-2' noting that other than a reference to 'no longer having access to that email address' in the telephone file note at Pg 33, there was no viable explanation why Ms Zraika did not receive and respond to the Show Cause Notice. 18. It appeared form the evidence of the witness that the dates that she did not have access to the email account were the same period or range of dates that the respondent was trying to contact her about the Show Cause Notice. It appeared from the evidence that there were no issues with accessing that email account prior to that time or in the period since that time, the current decision being received to the same email address. The witness however agreed that notwithstanding those issues that August and September 2021 are four years after provider approval was initially granted in September 2017. 19. In re-examination the witness was asked about the seminar she initially attended for service approval. The witness said that she came away from that seminar with an impression that the Department would be understanding enough to reinstate her approval. 20. The Tribunal asked questions of the witness consistent with its powers under s 38 of the NCAT Act. The Tribunal sought to understand the issue about the exam time. Questions and answers covered setting up the tabs on the desktop for the exam so that the witness could have the legislation and regulations and some other material in place on four tabs. We remained unsure as to whether this occurred in the reading time or otherwise. 21. We noted the evidence at [47] which infers that the applicant was logged onto the exam for 75 minutes, being the maximum time to complete the exam. 22. The Tribunal also inquired into the nature of relief that the witness was seeking and reiterated our preliminary observation that in conducting a merits review of the decision we were not practically in a position to evaluate whether the curriculum that the respondent used was (a) fit for purpose having regard to the knowledge skill and understanding required for the approval, (b) whether the requirement was too onerous and (c) by what means were we to make conclusions on the respondent's requirements noting that they are the statutory convenor, administrator, assessor and regulator. 23. At this point the witness told the Tribunal that part of her motivation for these proceedings concerned a view that she had been poorly treated by the respondent. In addition she expressed a desire to if at all possible prevent someone else from having to endure the experience that she had, with approval, lack of notice and reapplying only to be rejected in both first instance and on internal review from an assessment process with which she had previously had greater (proven) success. The witness said that she had been through the process twice now and review and internal review stages in the most recent application. 24. The witness also reiterated her concerns about an unfairness issue with the written assessment (exam) and maintained that she lost eight minutes at the start – trying to set up the shortcuts – and five minutes at the end of the exam. 25. Following the Tribunal's questions the parties were permitted to ask questions arising. The respondent referred the witness to pages 236, 239 and 241 of Exhibit 'R-1' which covered the interview 'reassessment process'. The email set out the need to have a copy of the legislation (National Law and Regulations) and that it would be conducted by Zoom and take approximately two hours. Emails confirming the time and date were amongst the material as were details of how the questions would be asked and answered (verbally). 26. At the end of Ms Zrakia's oral evidence the Tribunal made orders concerning the confidential material, and as outlined above allowed the applicant's Counsel conditional access for the sole purpose of effectively representing his client's interests in the main portion of the proceedings. Respondent's Evidence 1. Ms Greenfield gave evidence on day two of the hearing. In evidence in chief she adopted her affidavit (exhibit 'R-2') as true and correct to the best of her knowledge. 2. In cross examination Ms Greenfield's evidence was that she held her current role since September 2017. She advised that in respect of the assessment process changes were made to the multiple choice assessment in March of 2022. There had also been changes to the legislation to specify that the Department can apply or subject applicants to specific testing regimes should they so desire. These changes were to the National Law but not the National Regulation. This was in response to the NCAT ruling in the case of CYU v Secretary Department of Education [2017] NSWCATAD 290 (CYU) that the imposition of testing was not supported by any proscribed legislative power. 3. The witness told the Tribunal that in CYU the Tribunal admitted the evidence of the testing because they formed the view that the respondent had a reasonably held view at the time in relation to possessing relevant powers to conduct the testing. The Department had argued that it was not on notice about that issue. As a result of the case the Department obtained legal advice which suggested that the reasoning in CYU and related cases was flawed and that whilst it was correct that the Department had never appealed those cases they did seek and obtain legislative change to cover off on the CYU issue. 4. It was put to the witness that the assessment process post CYU was a deliberate process. The witness agreed with this proposition. Ms Greenfield said that applicants were invited to attend. When asked if this meant that a participant had a choice to participate in the formal assessment process or not Ms Greenfield said that she could not comment. Ms Greenfield did confirm that in respect of the Legislation in force at the time of this application, it was not mandatory to have an assessment. Ms Greenfield in responding to the need for an assessment said that knowledge of the National Law sits within the broad knowledge required, but also goes to the specific requirements to ensure that the individual has the knowledge to enable the approved provider to provide quality education and care services to children in a manner that would ensure their safety, health and well being, and improve the educational and developmental outcomes for those children. 5. Ms Greenfield observed that if a person does not undergo a knowledge test etc. there may be other ways of assessing them. However the Regulatory Authority would think that they have the abilities, not that they would have the capacity to acquire the capabilities. This would arise for example, if someone already ran a day-care centre / business but reapplied in order to set up a different legal entity. 6. It was put to Ms Greenfield that a lawyer would be presumed to have knowledge of the law and go some way to applying it. Ms Greenfield said that she is aware of other 'failed applications' by legally qualified persons. Ms Greenfield said that the issue is that a person must be able to operate and apply the laws in the operation and management of an education and care service. 7. The witness was taken to page 126 of Exhibit 'R-1' which concerned the Department's risk assessment tool. At page 133 Ms Zraika's risk rating was recorded as 'high'. The test result at Page 135 was also recorded as 'high'. Ms Greenfield confirmed that the multiple choice questions are of equal value for each question. Ms Greenfield agreed with the proposition that Ms Zraika's unanswered questions do not indicate a lack of knowledge or any knowledge of the subject area. However when assessing a candidate as per the Internal Review process detailed on page 353 of 'R-1' in addition they also look at the person's experience in the sector, experience outside the sector, their references and qualifications. This evidence was consistent with what was recorded in page 353 that the testing of an applicant via responses to assessment scenarios is only one method employed to determine fitness and propriety. This was also picked up at pages 376 and 378 where the detailed Internal Review decision is set out. The reference on page 378 observed: .. your responses to the knowledge assessment questions on 6 July 2022 and to the questions asked during the interviews on 3 November 2022 and 12 May 2023, are of significant probative value as they constitute the only current evidence of how you would manage certain situations as an approved provider of education and care service. Knowledge of the Applicable Laws is an important aspect of ensuing the successful operation of a service and you were unable to satisfactorily articulate responses to the questions asked in relation to your knowledge of the Applicable Laws and their practical application in the context of the role of an approved provider. 1. The witness confirmed that test results / scores were not released as all the Commonwealth Jurisdictions under the National Law had agreed not to release actual scores or cut off thresholds. However Ms Greenfield noted that annexure 'J' to her affidavit provided the various breakdown of results for Ms Zraika. 2. Ms Greenfield was taken to page 192 of 'R-1' concerning Interview No 2. At page 192 the communication notes that: 'The purpose of this interview is to clarify details around the information provided by you as part of you [sic] provider approval applicant including your compliance with the National Law and Regulations'. Ms Greenfield agreed that the purpose of the interview was not to test someone as to their knowledge but to clarify. Whilst some questions in the interview such as those on the top half of page 196 test knowledge, most of the questions over pages 194-197 are clarification type questions. Ms Greenfield repeated that the interview is to clarify, and most of the questions did this. Along the way there are four specific questions which go to the merits and the regulator places weight in all of the responses. Discussion of general evidence adduced during confidential session 1. As noted above the respondent relied upon confidential evidence (Exhibit 'RC-1'), which was provide to the applicant's Counsel on a confidential basis as set out at [32] above. The basis of the confidentiality application and ruling was essentially to enable the intellectual property of the respondent Department to be preserved as well as the integrity of their series of questions and expected responses. In this regard the details of that data were suppressed by the s 64 order which appears at the commencement of these reasons. It is however necessary in our view, having regard to fairness to the applicant, and noting that her Counsel played an active role in this aspect of the hearing, to detail, in somewhat general terms, some of the evidence without breaching the implied basis of the suppression. In our view that detailing does not extend to any need for separate 'confidential reasons or analysis' in these reasons for decision. 2. Ms Greenfield said that the 'rubric' sample of 'best answers to be expected' material etc. was developed by her and her team. In respect of the second interview with Ms Zraika, Ms Greenfield said that the purpose was to ascertain what the candidate / applicant knew about the responsibilities under the National Law. 3. In respect of one of the questions that was put to candidates the applicant's Counsel noted that the question concerning responsibilities was very broad. The vast scope of possible answers to this question illustrated the extreme breadth of the question and broadly the witness agreed with that characterisation. 4. The Tribunal noted the number of missed and correct answers of the applicant. The Tribunal and the parties embarked on a long discussion during confidential session about the interview testing and assessment process generally. Ms Greenfield did agree that there was a level of duplication in some parts of the overall testing process. 5. The applicant's Counsel asked some questions around why at certain aspects of the interview process Ms Zraika was prompted by the interviewer and at other times she was not. Ms Greenfield could not recall why this had been the case. She agreed with the proposition that prompting may cause the interviewer in certain circumstances to have learnt something more about a candidate (including the applicant's) knowledge. 6. Ms Greenfield told the Tribunal that at the time she understood that Ms Zraika had no specific experience in an education and care setting, but that there had been some experience at the CBA and as a senior lawyer in the small firm that she was employed with. 7. In re-examination Ms Greenfield was taken to page 362 of 'R-1' noting the areas listed by dot points at the bottom of that page and over to page 363 where Ms Zraika was said to have failed to provide sufficient information. Ms Greenfield said that these items identified only arose form her answer to the very broad question 1, and that the dot points listed on page 365 deal with the analysis of information provided in response to the remaining questions. They also deal with the matters that the applicant raised with the Department during this process, such as the time issues around the initial exam, her health at the time of the initial assessment, and her personal circumstances concerning the delay and ultimate inability to start operating the previously approved service, as well as the issues relating to the lack of receipt of the Show Cause Notice due to the reported email problem. Applicant's Grounds / Written submissions 1. In her written material the applicant gave evidence about the difficult time that her family was experiencing in 2018 due to the serious illness of a relative. This was put forth as part of the reason for not opening a Childcare Centre after the earlier approval had been given. Covid 19 was then to become a further issue relating to the delay according to the evidence in Ms Zraika's signed statement 'A-1'. 2. In 'A-1' Ms Zraika also gives evidence about her exposure to the industry through her sister and that during the period 2017 to 2023 she had 'a broad range of exposure to the industry'. Once the sister's consultancy business was up and running Ms Zraika said that she worked with her sister providing legal advice on set ups and receiving knowledge and information back through her sister by 'practical exposure to brand new childcare centres being built and showed me how policies and procedures are out in place through practice'. Reference was made to the Centre 'Three Little Birds' that was opened by the applicant's sister in 2023 as part of her consultancy set up business. The applicant states in 'A-1' at [30] and [31] that '30. …"Diana tested my knowledge of the laws and regulations on that visit, and I was able to answer her scenario – based questions in practice. She said words to the effect of 'where would you place your first aid kits;? 'where would you present your Quality Improvement Plan?", how will you remove children safely from the nursery in the event of an evacuation"?. We discussed requirements regarding space, and I got to experience her interview parents and take them on a pre-enrolment tour. 31. The knowledge I have gained through my sister being a consultant has been ongoing.' 1. A supplementary statement received as 'A-2' spoke to Ms Zraika's skills and experience as a Solicitor, a sole trader operating a hair dressing wholesaling business and banking and insurance experience, as was tested during her cross examination. 2. In written submissions the applicant submitted that the matter turns on whether she is a fit and proper person in accordance with s 12 of the National Law. The applicant submitted that s 13 sets out the relevant matters to take into account, noting that the section does not provide for an examination of a person's current state of knowledge. It was submitted that where a person's fitness and propriety can sufficiently be assessed by the matters specifically provided for in s 13, there is no warrant to go beyond those matters and no need to call upon the 'general power' to consider matters in s 13 (3) of the National Law. 3. Submissions were made that challenged the respondent's position on the case of CYU whereby the applicant submitted that CYU correctly decided the matter that there was no express power for the respondent to require the applicant to undergo an assessment and that under s 38 of the NCAT Act the Tribunal determines how it will inform itself. 4. The applicant submitted that the position that the Tribunal would not be well equipped to undertake an exploration of Ms Zraika's state of knowledge illustrates their contention that the fitness and propriety test in s 13 of the National Law is not designed to delve too deeply into the state of a person's knowledge. As a result the applicant submitted that the 'Tribunal on review, should reasonably expect itself, and be expected to be well placed to explore those matters in issue in a review application'. (We return to this issue later). 5. The applicant further submitted that the general terms applied by the respondent were misapplied, in that reliance on the notion of management experience for Ms Zraika was misplaced. The applicant submitted that various dictionary definitions interplayed the term manage and administer. In this regard the applicant submitted that the s 13 (2) reference to the term 'management' should be interpreted as meaning administrative skill, which they had demonstrated through their conducting of legal practice. 6. Likewise positive interpretations were given to other terms such as 'capability' which the applicant submitted was the ability to take in, have room to acquire, having capacity power or fitness etc. 7. The applicant also provided a summary of the relevant case that the Tribunal had decided and their applicability to then current facts. CZR v Secretary Department of Education [2017] NSWCATAD 282 appears somewhat on point with the current matter in that the Tribunal found that whilst the assessment process was claimed to be unfair, the Tribunal found that a lack of knowledge of critical provisions essential to the administration of the National Law and for the welfare of children – noting that CZR did not demonstrate such knowledge therefor they were not a fit and proper person. CYU ultimately reached a similar position once the question of lack of authority for the testing process and decision to admit that evidence was covered. The Tribunal concluded that the assessment results indicated deficient knowledge and understanding of the National Law and Regulations. Other cases referred to by the applicant all ultimately turned on the Tribunal accepting the assessment as a valid criteria for considering knowledge of the National Law and Regulations and therefore scores indicative (as set by respondent) to determine whether a person held requisite knowledge and as a result were fit and proper (or not). 8. The applicant's Counsel submitted that s 119 (7) of the National Law provided the respondent with power on internal review to confirm the decision, or make any other decision they they think appropriate. It was clear from the current matter that the Respondent confirmed the decision and declined to make any other decision. 191 Internal review of reviewable decisions (1) A person who is the subject of a reviewable decision for internal review may apply to the Regulatory Authority in writing for review of the decision. (2)…. (3)…. (4)…. (5)…. (6) …. (7) The Regulatory Authority may, in relation to an application under subsection (1)— (a) confirm the decision; or (b) make any other decision that the Regulatory Authority thinks appropriate. 1. However the Applicant's Counsel submitted that on external review the Tribunal's actions are limited to s 193 (3) whereby: 193 Application for review of decision of the Regulatory Authority (1) A person who is the subject of a reviewable decision for external review may apply to the relevant tribunal or court for a review of the decision. (2) An application must be made within 30 days after the day on which the applicant is notified of the decision that is to be reviewed. (3) After hearing the matter, the relevant tribunal or court may— (a) confirm the decision of the Regulatory Authority; or (b) amend the decision of the Regulatory Authority; or (c) substitute another decision for the decision of the Regulatory Authority. 1. It was arguable whether the power under s 193 (3) (c ) to substitute another decision was more or less constrained than the power under 191 (7) as both related to the making or issuing of a 'decision'. 2. The applicant in oral submissions said that the Tribunal's task is to grant the application because there is more to the matter than how the applicant went in the assessment process. However in respect of that process the applicant's Counsel submitted that they were not confident that the process was fair. On that basis they submitted that the testing should be discounted and that the determination be based on the other information leading to the fit and proper assessment which can be based on Ms Zraika's Solicitor qualifications as well as her other experience in the sector as demonstrated in her evidence. They reiterated that the assessment process should have been conducted in a better way which would have ensured that it was fairer than what eventuated. The process of an exam, and a clarification interview with four short questions would have sufficed. The Internal Review Assessment was maintained by the applicant's Counsel as being overly proscriptive and seeking a 'council of perfection'. 3. In closing the applicant submitted that the Tribunal can be confident in respect of the applicant's fitness and propriety to hold the authority because (a) she is a Solicitor, (b) she has previously been adjudged suitable to be granted the provider approvals, an (c) the tests were simply asking too much of a candidate and were applied in the wrong way. Respondent's submissions 1. The respondent post evidence submitted that their power to assess whether a candidate / applicant was a fit and proper person is constituted by the statute. Whilst the proceedings are not an administrative review they nonetheless are a merits review. Section 193 (3) of the National Law offers three options to the Tribunal , to confirm, amend or substitute the decision. Option (a) to confirm the decision has an obvious meaning. Option (b) would arise when an authority is to be granted with conditions, and option (c) would be utilised when the review is successful. 2. The respondent noted that whilst CYU had not been appealed, they submitted that was because the Government had determined to go down the legislative route to overcome any legal issue raised by the import of the decision in future matters. Thy reiterated that they had obtained legal advice which they submitted meant they would have been confident of any appeal. 3. The respondent submitted that the Tribunal should approach s 12 of the National Law consistent with the approach in Hughes v Vale Pty Ltd v NSW (No.2) [1955] HCA 28; (1955) 93 CLR 127 referencing the requirements for knowledge honesty and ability. The respondent submitted that the criteria arising from Hughes and Vale should be applied by the Tribunal to s 12 of the National Law. The respondent submitted that Ms Zraika's honesty was not in issue, just her knowledge and ability. 4. The respondent submitted that Ms Zraika provided little evidence of her experience, mainly being a brief affidavit form her sister (exhibit 'A-3'). The respondent submitted that there was a 'vacuum of evidence' and this was not the respondent's problem but the applicant's. 5. Further submissions were made concerning the credibility of Ms Zraika's oral evidence at hearing, especially around the contrast between her oral evidence (when tested) and some of the matters in her written evidence. In the main these matters went to Ms Zraika's experience and nature of her duties in a professional context. The respondent submitted that the Tribunal should, find that Ms Zraika was not a credible witness. 6. Further in respect of the testing and interview process, the Respondent submitted that the large open question in the interview (Qiestion1 ) was not inappropriate and that the question was suitable and should not require prompting. Consideration 1. During the course of the proceedings reference was made by both parties to the case of CYD v Secretary of the Department of Education NSW [2017] NSWCATAD 190 concerning the fit and proper approach. At [89] of CYD the Tribunal observed: 89. The assessment whether the applicant is a fit and proper person is a value judgment by the Tribunal; it takes its meaning from its context, the activities in which the person is engaged and the ends to be served by those activities. The assessment relates to not only character, reputation and moral integrity but also includes public confidence that the person is able to maintain high standards of rectitude and that their likely future conduct will keep to those standards. The question as to whether a company is fit and proper person may be determined by reference to the conduct, character and reputation of a single person associated with the company. 1. We take this observation of the Tribunal to be authority for the premise that the public needs to be satisfied that the holder of the authority has the requisite skill to perform the duties and discharge the functions of the service consistent with its objects. In that regard we take from the National Law that an approved operator must be competent, that is to possess competencies and knowledge to enable the approved provider to provide quality education and care services to children in a manner that would ensure their safety, health and well being, and improve the educational and developmental outcomes for those children. Other cases support this position as well. 2. Much of the applicant's case can be summarised as follows: * Ms Zraika had previously been given service provider approval and as a result she meets the standard and criteria for a further approval. * Ms Zraika is not responsible for a failure to respond to the earlier Notice to Show Cause for that prior provider approval, and as result the respondent should have allowed her to show cause again with the situation being that her approval would not have lapsed / been withdrawn. * Whilst Ms Zraika submitted to the testing, assessment and interview processes in the most recent application for provider approval, the respondent Department at the relevant time had no legislative authority to apply such process to her. * The exam process was unfair as there was not enough time to complete the exam fairly, as the exam concluded before time (there was some dispute as to what period between four and eight minutes). * The respondent has taken the wrong approach to s 13. The fitness and propriety test in s 13 of the National Law is not designed to delve too deeply into the state of a person's knowledge. 1. As noted the applicant submitted that due to the ruling in CYU all aspects of the decision relating to the assessment should be disregarded. However the Tribunal notes that notwithstanding the finding that at that time there was no lawful authority to require Mr 'M' in CYU to undertake the testing, in CYU the Tribunal ultimately admitted that evidence (being the evidence of the testing results) because to do otherwise would limit their ability to determine whether CYU possessed the necessary skills knowledge and experience (including aptitude) to perform the role of an approved provider consistent with the requirements of the National Law. 2. At [72] – [73]] of CYU the Tribunal observed: 72. 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. 73. I decide, for these reasons, not to exclude the evidence of Mr M's assessment responses and assessment results. 1. In CYU the Tribunal found that (Mr 'M') had a deficient knowledge of the National Law and National Regulations and was therefore not a fit and proper person for the purposes of having provider approval. In our view the same question ultimately arises here, irrespective of whether the respondent had a basis to conduct the testing. In our view the line of cases referred to by both parties shows that a testing and assessment regime has been in place for some time, possibly since the commencement of the NSW provisions of the National Law, at least from practical perspective. From a consideration of Ms Greenfield's evidence (both oral and her affidavit) it is difficult to ascertain how the National Quality Framework (NQF) could operate without such processes in place. 2. We have noted the applicant's evidence and submissions about the process and the outcome. We have also noted that she participated in the process and it was only in challenging the overall decision on review that she sought to rely on the preliminary finding from CYU about the process at the time she underwent it. 3. In respect of the exam time we find that the evidence is insufficient to make any finding that applicant was materially disadvantaged by the amount of time she was provided. We note that there were contradictions and variances on the evidence as to the actual time allowed for the assessable aspect and whether other time (for set up) was separate. We are not certain that in such a scenario an examinee has time to set up bookmarks and shortcuts in their browser for an exam. The method that they choose to utilise would be a matter for the examinee and as a result we doubt that this preparation time would be provided across the board. The more likely explanation being that once the exam time commenced the computer allowed the answers to be recorded and the system was active. We also note that the evidence on page 148 of 'R-1' says 9:30am Registration Start Time, 9:45am Assessment Start Time. 4. As a further point we note the evidence referred to at the conclusion of [47] above, noting the other evidence that the exam duration was 75 minutes. 5. Further, on our assessment of the applicant's own contemporaneous evidence on this matter we are not satisfied that there was any real prejudice to her. Page 220 of 'R-1' is the applicant's post exam email of compliant / notification of the issue. From reading the email the evidence appears that the time on the computer was being followed by the applicant, and it may have been out of sync or not accurate (or otherwise). Nowhere in that email does the applicant state that she was given less than 75 minutes to do the exam, merely that she was following the computer timer and time was called when the computer timer still had some minutes to go. Whilst we appreciate that this may have unsettled he applicant's planning and efficiency we do not see that there is contemporaneous evidence of less than 75 minutes being provided to Ms Zraika to complete the exam. 6. In respect of Ms Zraika's CV and claimed management experience, whilst we refrain from making any adverse finding about her credibility as a witness (as the respondent submitted we could and should), in our view having examined the written and oral evidence, she did embellish her management experience in respect of the supervision and management of staff and overall management responsibility for a work process. Her CBA and Legal Practice evidence was in our view at the very least an overreach and at worst disingenuous. We note however that in her oral evidence in cross examination the applicant conceded flaws in that evidence and as a result we make no adverse findings. 7. However, in reaching that position we reject the applicant's submission as to the meaning of the term management experience and that in the context of the National Law it equates to administrative experience. Whilst administrative experience is relevant, the ability to manage others and processes is clearly relevant to the skills required under the National Law to deliver the necessary outcomes by being a fit and proper person to have operator approval. 8. In essence we are unable to find any unfairness to the assessment and consideration process and note that the side issue of the failure to receive emails was never resolved by the evidence to the extent that we are able to make any finding of fact. The applicant's evidence being that she could not access her specific business email account at that time. At the conclusion of the evidence we remained uncertain as to why that was the case. We do not believe that there was anything inappropriate or unorthodox about the respondent communicating with the applicant Business at it's registered address for service of notices. We note for completeness that the result of the current Internal Review which led to this external review before us was communicated to the applicant and received by her at the contentious email address that she had set up with the Company from 2017. 9. Reference was made by the applicant in their authorities to CZR v Department of Education, Early Childhood and Care Directorate [2017] NSWCATAD 282. We note from CZR at [35] to [37] the following was stated: 35. "The expression "fit and proper person" "takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities". Australian Broadcasting Tribunal v Bond (1980) HCA 33 170 CLR 380. 36. In Hughes v Vale Pty Ltd v NSW (No.2) [1955] HCA 28; (1955) 93 CLR 127 the High Court considered that "fitness" had three components; honesty, ability and most relevantly, 'knowledge' in the sense of knowing what ought to be done. Conclusion 37. The Tribunal agrees with the respondent's submission and finds that a 'fit and proper person' for the purposes of s.12 of the National Law must demonstrate detailed and accurate knowledge and understanding of the National law and the Regulation. While a knowledge of National Law is not expressly contemplated in s.13(1) and (2) of the National Law in determining 'a fit and proper person", s.13(3) of the National Law makes it clear that factors not expressly listed may be taken into account in determining whether a person is a fit and proper person. 1. As we have found that the actions of the respondent were appropriate and fair at the relevant times of cancellation, we are left with a consideration of what order is appropriate at the conclusion of the evidence of the matter. 2. Ms Zraika and her Counsel maintained during proceedings that the Tribunal should find that the process substantially or in some other way was unfair, and as a result on review set the decision aside. We raised the matter with Ms Zraika at the conclusion of her re-examination. We suggested that an option was always open to her to 'apply again' for provider approval, rather than going down the path of external review which consumes time and to some extent expense which might or might not result in either a more positive result or a quicker result either way. 3. Ms Zraika was not responsive to this course (as is her right) and she suggested that she had been treated badly and wanted the matter in effect corrected. Whilst these proceedings remain a merits review bearing in mind that correction to any injustices would not necessarily determine whether the applicant was a fit and proper person for the purpose of the National Law, such an approach would seem contrary to the guiding principle in the NCAT Act 2013. 4. In our view as noted earlier in these reasons the real issue in the proceedings is whether Ms Zraika is a fit and proper person, and with respect, it is not whether she has been poorly treated. 36 Guiding principle to be applied to practice and procedure (1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The Tribunal must seek to give effect to the guiding principle when it: (a) exercises any power given to it by this Act or the procedural rules, or (b) interprets any provision of this Act or the procedural rules. …. (4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings. (5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions. (Emphasis added) 1. Concerning the institution, initiation, and the manner of running of the proceedings in the Tribunal, this observation is our view somewhat central to the impediment that the Tribunal faced. As noted above we put the applicant on notice that notwithstanding the fact that the Tribunal as constituted in these proceedings was 'multi-disciplinary' we had neither the expertise or the ability or resources within the confines of the hearing to undertake a forensic assessment of the appropriateness of the respondent's testing regime and requirements. 2. We did attempt some exploration of these matters in the respondent's evidence and the confidential session whereby the applicant's Counsel had access to the confidential material and was able to question the respondent's witness and put propositions about that evidence to the Tribunal. 3. At the conclusion of this lengthy process the only comment we would observe about the testing content or 'curriculum' is that the first question in the interview assessment process (after underscoring in the written exam assessment) was too broad to ever result in a meaningful and comprehensive answer form a skilled candidate. 4. However we find that that matter, and the context of the questions / assessment criteria / material cannot be a basis to make any adverse finding that would assist the applicant. The Parliament has entrusted the respondent with approving applications. As such, unless an individual was to seek a declaration from a Court that a process was misconceived and contrary to law in some way, and that matter was before us, we might be able to consider such a matter. However, we do not have jurisdiction to make declarations nor would we even if we had the power having regard to the evidence currently before us. 5. To the extent permissible in a merits review, having regard to the evidence in 'R-2' and 'RC-1' to which we permitted Ms Zraika's Counsel access, we see nothing inappropriate or improper in the testing material having regard to the duties and functions that an approved provider is required to discharge. 6. During the period under consideration in these proceedings the same process is used for all applicants for provider approval in the first instance with the only variation being that there are five or so versions of the curriculum or examination syllabus (types of questions / scenarios) available to be used and rotated or selected for candidates / applicants, or groups of candidates. 7. In addition for the above reasons we do not agree with the applicant that the approach taken by the respondent to the fitness and propriety test in s 13 of the National Law delves too deeply into the state of a person's knowledge. As has been stated in the cases referred to by the both the applicant and the respondent, where an applicant or candidate fails to demonstrate sufficient knowledge of the National Law and Regulations they will not be a fit and proper person for the purpose of having provider approval. 8. Again we observe that the purpose and role of provider approval is to ensure that an approved provider possesses the requisite knowledge of the necessary measures to ensure the safety, health and care well-being of the children enrolled in the service, and ensure the improvement of those children's educational and developmental outcomes. 9. These matters are consistent with the tests in Australian Broadcasting Tribunal v Bond (1980) HCA 33 170 CLR 380 and Hughes and Vale. What is the correct and preferable decision to make? 1. Having regard to all of the matters outlined above, there is no basis to make any findings of unfairness in the application process. If we did make such a finding, then if the matter was an administrative review application – which we observe it is not, - we could consider remitting the matter for the respondent to reapply the process to the applicant addressing any identified unfairness in the new process. 2. However as the matter is not an administrative review we are not empowered to remit the matter under s 65 of the Administrative Decisions Review Act 1997 (the ADR Act). 3. Having considered all of the evidence and submissions given by the parties, and having regard to the objects and principles of the National Law, it is appropriate to make the following order. Orders 1. The decision of the respondent is affirmed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 April 2024