In Globesat Pty Ltd v Secretary Department of Education, the NSW Civil and Administrative Tribunal heard an application by the applicant (Globesat Pty Ltd), seeking a review of a decision made by the respondent (Secretary, Department of Education) to refuse to grant provider approval to the applicant. The approval sought by the applicant is required in order that Globesat can operate a service under the Children (Education and Care Services) National Law NSW (National Law). The applicant’s director, Mr Ghassan Kbar, applied for provider approval on 17 January 2023. That application was refused on the basis that it was considered that in a knowledge assessment undertaken on 30 March 2023, he had failed to identify critical elements of the National Law and of the Education and Care Services National Regulations 2011 (National Regulations) and thus failed to demonstrate a sufficient understanding of the roles and responsibilities of an approved provider in the day to day operation of an education and care service. He was advised in that letter that he could make a further application, or he could seek internal review of that decision. On 7 August 2023, he made a further application for provider approval. After a risk assessment was conducted, he was invited to undertake a knowledge assessment which he completed on 12 October 2023. This application was also refused by letter dated 27 November 2023. He was advised that the respondent was not satisfied that he was a fit and proper person to be involved in the provision of education and care (referring to s 12 and s 15(1)(b) of the National Law) as the Department expects that each person with management or control of a child care centre has adequate knowledge and understanding of a provider’s obligations under the National Law and Regulations. It was said to be of “concern that you are still not able to demonstrate sufficient knowledge of the National Law and Regulations after two attempts of sitting a knowledge assessment”.
After internal review confirmed the refusal decision the applicant sought review by the Tribunal. The Tribunal considered the question of whether the applicant was a fit and proper person, finding (paras.71-82):
The applicant has focussed his case on what he contends were flaws in the decision-making process and in particular, his disagreement with the risk assessment process and its application to him. In National Education Childcare Service P/L v Secretary Department of Education [2024] NSWCATAD 105 (National Education), where a similar approach had been taken by the applicant, the Tribunal noted (at [112]) that in its view, the “real issue in the proceedings is whether [the applicant] is a fit and proper person, and with respect, it is not whether she has been poorly treated”.
In CYD v Secretary of the Department of Education NSW [2017] NSWCATAD 190 (CYD), the Tribunal, referring to the requirement that an applicant be a “fit and proper person”, observed at [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.
In National Education, after setting out the observation from CYD at [89], the Tribunal stated (at [96]):
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. (emphasis added)…
The Tribunal considers that to be an accurate statement of what is required for a person to meet the requirements set out in the National Law to be approved as a provider. In this case, the issue is whether the applicant possesses “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”.
While the applicant has provided detailed submissions about his views on the flaws in the assessment system, and expressed his disagreement with the evaluation and the application to the statutory framework of his previous qualifications and experience, the fact remains that on the material before the Tribunal, in particular the uncontested evidence about his results in the knowledge assessment, he has not demonstrated that he has the requisite skill and knowledge required to perform the duties and discharge the functions of a provider under the National Law.
The Tribunal finds that while the applicant contends that his experience in higher education and management ought to have been given greater weight, that experience is not directly relevant. This is because, as the applicant has acknowledged, he has no experience in early childhood education. The Tribunal also finds that the time the applicant spent preparing a DA for the child care centre he hopes to operate is not directly relevant to knowledge of the National Law and associated regulatory framework.
When giving oral evidence, the respondent’s witness, Ms Hammoudi stated that the approved provider has the key role in ensuring that the responsibilities under the National Law are adhered to. The Tribunal agrees that the provider has the central role in ensuring that the responsibilities under the National Law are adhered to as the statutory framework places critical responsibility on that person. When the provider is a corporate entity, a relevant officer of that entity is the person with management and control (see s 5A(a)). In this case, as the sole director of the applicant, Mr Kbar is the person who would have management and control of the centre if the applicant is granted provider approval. The statutory scheme places that responsibility directly on the person with management and control. It is therefore Mr Kbar’s skill and knowledge that must be assessed in order to determine whether the applicant in this case (Globesat) is relevantly a fit and proper person.
It was open to the applicant to seek to persuade the Tribunal that he had overcome the deficiencies identified in his results in the knowledge assessment: see National Law s 14(1)(c). But he has instead chosen to seek to challenge the process by which the decision was made. The evidence before the Tribunal is that on both occasions when the applicant undertook the knowledge assessment, he could not demonstrate sufficient understanding of the matters that are the subject of that assessment to achieve the pass mark which is set considerably above the 63% that he scored on the second occasion.
In National Education, the Tribunal referred to other cases in which it had been (unsuccessfully) contended that the process was unfair: see National Education at [83], referring to CZR v Secretary Department of Education [2017] NSWCATAD 282; and CYU v Secretary, Department of Education [2017] NSWCATAD 290 (CYU). The latter was a case where the Tribunal held that there was no legislative basis for requiring a written assessment. However, despite that finding, the Tribunal in CYU had decided to give weight to the result of the written knowledge assessment and concluded from it that the applicant had insufficient knowledge of the National Law and Regulations, as a result of which he was found not to be relevantly a fit and proper person and thus was not granted provider approval. As noted above, s 14 has now been amended to make express statutory provision for the written assessment.
In this case, the Tribunal has found that the applicant, by virtue of his lack of experience in early childhood education and his failure to achieve a pass mark in the knowledge assessment, cannot demonstrate the required knowledge of the National Law and related regulatory framework. It follows that under the National Law, he is not a fit and proper person for the purpose of provider approval.
In National Education, the Tribunal made a number of apposite observations about what was being asked of it there, as it is here, noting at [113] and [116] respectively that although the Tribunal was constituted as multidisciplinary it 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”. Nor was it able, as explained to the applicant in the current case, to undertake judicial review of the legality or otherwise of the process. As noted at [116], “The Parliament has entrusted the respondent with approving applications”.
In those circumstances, the Tribunal cannot be satisfied that the applicant is a fit and proper person within the meaning of the National Law. Thus the Tribunal confirms the decision to refuse to grant the applicant provider approval.
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