How to Appeal to the Administrative Appeals Tribunal on a TEQSA Decision

Last summer, the University of Southern Queensland, with a worldwide student population of nearly 28,000, faced serious trouble. USQ’s regular application for National Register renewal got put on hold. Reports of internal problems and other issues at USQ reached TEQSA and caused the delay.

TEQSA chief executive Anthony McLaren told The Australian last August that “USQ’s application for renewal of registration is still under consideration. In light of new information being brought to TEQSA’s attention, and an upcoming change in vice-chancellor, this application has required additional work and consideration by the agency.”

Despite having a large student population and a reputation as an online course innovator, USQ’s administration failed to convince TEQSA that they deserved automatic renewal. If denied, USQ would have to take the next step and appeal to the Australian Administrative Tribunal for Higher Education Registration.

This means that for higher education providers, receiving or renewing a registration status is far from automatic. Universities seeking renewal should certainly engage higher education consultants to help on appeals to the AAT , especially if they have had administrative staff turnover or more serious issues. Whether or not you engage higher education consultants, understanding the AAT appeal process should serve as the first step in overcoming registration issues.

Although relatively straightforward, the AAT appeal process involves choosing options. Higher education experts agree that any institution looking to appeal a TEQSA decision should engage special consultants to help boost chances of success.

The National Register and Higher Education Services

The National Register lists approved higher education providers’ details. This includes:

  • Legal entity name
  • Australian Business Number used for higher education operations
  • Provider category
  • Website of the higher education provider
  • If the higher education services provider can serve overseas students or students studying in vocational education
  • Other pertinent links, important addresses, and dates of renewal

The registry also includes information on those institutions whose registration has expired, been withdrawn, or cancelled.

Approval for a position on the National Register remains vital for any higher education services provider to operate legitimately in Australia. Denial or other issues with registration can cause serious harm to the reputation of a university. This makes understanding the appeals process of first importance in case TEQSA discovers issues in the application.

What Is the Administrative Appeals Tribunal (AAT)?

The AAT, established by federal law in 1975, conducts independent merit reviews of decisions made by administrators under Commonwealth laws. When a case comes before the AAT, it receives a “fresh look,” as the AAT’s website describes it. This means that the tribunal goes over the facts, law, and policy relevant to the case, then makes a decision based on its merits. The goal of the process lies in coming to either the legally correct or preferable decision. In addition to higher education, the AAT also examines cases related to Centrelink, child support, and migration issues

AAT action, however, has limits. According to its website, the AAT has no jurisdiction in the following areas:

  • every decision made by the Australian Government or under a Norfolk Island law
  • decisions made under state or territory laws
  • decisions made by local governments.

Benefits of Making an Appeal to the AAT

There are many benefits of applying to the AAT to appeal a decision made by TEQSA. Many of these reasons include:

  • An independent and fresh review of evidence and cases.
  • The prospective higher education provider can assemble evidence to respond to any reviews provided by TEQSA.
  • A review of processes and procedures were fairly and consistently followed by TEQSA.
  • That the decision made is fair and proportionate to the case at hand and follows the principles of regulation.
  • That any bias or unreasonable claims are tested in a tribunal.
  • That the provider can hire appropriate legal expertise to ensure that there is a fairer balance of power and issues of information asymmetry are addressed

While the Tribunal implies legal representation, unfortunately, this has been a path that many higher education providers have needed to resort to in order to receive correct decisions about their status.

Applying for Administrative Appeals Tribunal Review

AAT appeals follow a relatively straightforward process, designed to provide multiple opportunities for early and easy resolutions. Along the way, the parties have options to allow for different forms of resolution. TEQSA will employ staff with years of experience in AAT appeals so basic knowledge of the process alone will not suffice with TEQSA. Consultants can help you develop a winning strategy as your case follows the AAT appeal process.

That being said, having a roadmap of the process before getting started helps tremendously.

First, contact the AAT to find the time limit involved for a National Register appeal case. Limits range from nine to 90 days or more and vary from topic to topic. You should do so by email rather than by phone. This way, you have the time limit expressed in writing in case someone made a mistake.

The AAT will allow time limit extensions in certain cases, even when the limit has already passed. Applications for extensions must go to the AAT in writing and must include reasons why the applicant could not comply with the time limit. To apply for an extension, fill out a form, write a letter, or send an email.

Those seeking redress through the AAT have multiple means by which to apply for an appeal. This can be done through a letter, email, filling out an application form, or applying online.

When writing the AAT by letter or email, include a copy of the decision and the following information:

  • all contact information, including name, phone number, mailing address, and email address
  • the date the decision was received
  • brief reasons why the decision is wrong.

If you cannot include a copy of the decision, also provide the following information:

  • the name of the person or organisation that made the decision
  • a brief description of the decision

Forms and other correspondence should get sent:

  • by post (GPO Box 9955 in your capital city)
  • by email (generalreviews@aat.gov.au)
  • by fax

Application fees of up to $861 may be applicable. Reach out to the AAT to find out if your institution must pay a fee and how much.

Steps in the AAT Process

Each case that reaches the AAT follows the same process from receipt of application until final decision. Resolutions can occur at several steps; not every case will follow the entire path to conclusion. Some steps allow for choices of options to pursue toward resolution. Experienced higher education consultants can bring vital expertise to making these crucial decisions.

Initially, upon receipt of the application, the AAT reaches out to the applicant, the agency whose decision the AAT will review, and any other relevant party. Each party receives a notice of application and then information about what will happen next.

The agency decision-maker, in this case, TEQSA, has 28 days to respond. They must send reasons for the decision and also supporting documentation.

Next, the AAT may choose to hold a preliminary hearing. This step only occurs when the tribunal wishes to examine case issues prior to launching a formal review. These issues may include breaches of the application time limit, whether or not the AAT has proper jurisdiction, or if the agency received a “stay order” requiring it to suspend its decision until the AAT has a chance to decide on the case.

When launching an appeal of a TEQSA decision, employing higher education consultants, lawyers, QCs or other representatives is common practice. Generally, at this point, the AAT reaches out to those representing themselves to advise on where they can receive assistance and information.

The first conference brings all parties together for an informal discussion of the issues and concerns about the agency decision. Starting the process with a conference allows for the possibility of an early resolution that could save time and money for all concerned, including the taxpayers. If no resolution appears likely, the AAT could then suggest an Alternative Dispute Resolution, or ADR. Each case will receive individualised attention through the ADR process. Cases could receive examination through another conference, conciliation, mediation, case appraisal, or neutral evaluation.

At any point during the AAT process, the tribunal may elect to hold a directions hearing. These hearings serve as a forum to discuss procedural issues that appear during the process. They also address any failure of compliance with tribunal requests from any of the contending parties.

All ADR processes take place in private to promote frank and open discussion that cannot serve as evidence in later AAT or other hearings.

Should conferences and ADRs fail to produce a resolution, the AAT will hold a formal hearing. Though usually public, the AAT has the discretion to hold private hearings if some issue gets deemed too sensitive. If all parties and the AAT agree, a decision can occur without a hearing, simply based on written evidence presented. Finally, the AAT will review the evidence and come to its decision on the matter.

Importance of Getting Professional Assistance

The tribunal process may seem fairly simple in the description. In reality, however, any administrative appeals process has its own culture, rules, and pathways. To those most familiar with the processes goes the advantage. Also, those who have limited experience in administrative appeals have just as limited of a frame of reference in understanding the strength or weakness of their case.

A word to the wise. Knowing the appeals process represents a small first step on the road.

The next step lies in engaging professional and experienced people with knowledge of the legislation on TEQSA. Consultants can help you, even well established higher education services should rely on consultants to guide each step, conference discussion, and choice of ADR. Seeking independent legal advice and a counsel to represent you at the tribunal is critical, too.

Independent and unaffiliated with TEQSA consultants like Darlo Higher Education has staff with years of experience handling AAT appeals, which makes engaging higher education consultants with appeals experience vital to success.

While you may or not be successful with an Administrative Appeal, there are many clear benefits of appealing:

  • You are more likely to receive an independent hearing;
  • The worst excesses of higher education regulation will be put under the spotlight and scrutiny;
  • You have a legal right and recourse to get a fair, impartial hearing of your case and review of evidence;
  • There is precedence among other providers to win in the Tribunal and over-turn poorly arrived at TEQSA decisions.

Interested in talking to us, why not email us now: info@darlo.com