Raelene Bartlett

Legal Decision-Making Under the National Vocational Education and Training Regulator ACT 2011 (Cth) Raelene Bartlett

This paper discusses the legal decision-making process as it applies to the National Vocational Education and Training Regulator Act 2011 (Cth) ("NVR Act") and how this impacts access to merits review while highlighting some significant areas of concern. These areas of concern are a cause for alarm at the highest levels of government and the judiciary. This paper does not seek to offer solutions. This paper was initially prepared in partial completion of a Supervised Legal Research project in the Faculty of Law at Murdoch University as part of a Bachelor of Laws (Graduate Entry) and merely seeks to highlight these areas of concern to enable focussed and critical discussions and investigations to commence. It is also hoped that this paper will be the basis for further research. Some of the key topics that will be discussed include consideration of issues of public interest and the concerns that are raised when the very basis for legal decisions under the NVR Act is potentially flawed and based on an unqualified foundation. The research considers the legal meaning and interpretation of the term 'decision' looking to statute and case law for guidance; a crucial factor for this research because if an administrative action (such as those referred to in this paper) does not constitute a 'decision' for the purposes of the Administrative Decisions (Judicial Review) Act 1997 (Cth), it cannot be reviewed. While reviewing Australian Broadcasting Tribunal v Bond, suggests that the steps in the process of making a final determination do not, in themselves form the final decision, it is precisely on the basis of these 'steps' that decisions are being made by the Australian Skills Quality Authority ("ASQA"). This paper highlights that the reasons given by ASQA in their legal decisions explicitly state that the 'decision' has been made due to non-compliance with the legislative requirements that these 'steps' are based upon. Another key area of focus in this paper is that of the Model Litigant Obligation in the Legal Services Directions 2017 (Cth) and how adherence to this 'Obligation' by ASQA lawyers as model litigants continues to be the cause for concern amongst legal practitioners. This paperback version has bonus content and offers that are not available in the ebook.