CYU v Secretary, Department of Education [2017] NSWCATAD 290

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CYU v Secretary, Department of Education [2017] NSWCATAD 290 Hearing dates: 26 May 2017 Date of orders: 28 September 2017 Decision date: 28 September 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: Dr J Lucy, Senior Member Decision: (1) Pursuant to s 193(3)(a) of the Children (Education and Care Services) National Law (NSW), the Tribunal confirms the respondent's decision of 26 October 2016 to refuse to grant the applicant a provider approval. Catchwords: ADMINISTRATIVE REVIEW – Education and Care Services National Law – Provider Approval – Jurisdiction of Tribunal – Whether exercising administrative review jurisdiction or general jurisdiction - Fitness and propriety of individual to be involved in the provision of an education and care service - Where respondent decided to refuse to grant provider approval on basis of lack of fitness –– Knowledge relevant to fitness - Correct and preferable decision UNLAWFULLY OR IMPROPERLY OBTAINED EVIDENCE – Where respondent had a policy of requiring applicants for provider approval and relevant individuals to undergo an assessment prior to processing application – Where respondent decided that individual proposed to have management or control of the applicant's education and care service was not a fit and proper person to be involved in the provision of an education and care service – Where decision was made on basis of assessment results showing lack of knowledge of National Law – Whether respondent's requirement that individuals undergo an assessment is lawful – Whether evidence concerning assessment lawfully obtained - Whether common law principles concerning unlawfully or improperly obtained evidence relevant – Whether Evidence Act provisions relevant – Exercise of discretion as to whether to exclude evidence. Legislation Cited: Administrative Appeals Tribunal Act 1975 (Cth) Children (Education and Care Services) National Law (NSW) Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Children (Education and Care Services National Law Application) Act 2010 (NSW) Evidence Act 1995 (NSW) Education and Care Services National Regulations (NSW) Cases Cited: 3 Angels Family Day Care Pty Ltd v Secretary, Department of Education [2017] NSWCATAD 265 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 Bunning v Cross (1978) 141 CLR 54 CTG v NSW Department of Education [2017] NSWCATAD 60 CTZ v NSW Department of Education, Early Childhood Education and Care Directorate [2017] NSWCATAD 132 CVM v NSW Department of Education [2017] NSWCATAD 108 DBU v Secretary, Department of Education [2017] NSWCATAD 257 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 Hird v Chief Executive Officer of Australian Sports Anti-Doping Authority (2015) 227 FCR 95; [2015] FCAFC 7 Hughes & Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127 Re Hughes and Legal Services Board [2008] VCAT 2654 Long Life Family Daycare v Director General Education Directorate [2016] ACAT 69 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Pearce v Button (1985) 60 ALR 537 Phoenix Eagle Company Pty Ltd v Tom McArthur Pty Ltd [2017] WASC 130 Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281 Southern Equities Corp Ltd (in liq) v Bond (2001) 78 SASR 554; [2001] SASC 70 Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555; [2014] FCAFC 93 Texts Cited: Administrative Review Council, Better Decisions: Review of Commonwealth Merits Review Tribunals, Australian Government Publishing Service, 1995 Category: Principal judgment Parties: CYU (Applicant) Secretary, Department of Education (Respondent) Representation: Solicitors: In Person (Applicant) NSW Crown Solicitor's Office (Respondent) File Number(s): 2017/00035479