Malek Fahd Islamic School Limited v Minister for Education and Early Childhood Learning

1. [1]

   HIS HONOUR: By Summons, filed 4 June 2021, the plaintiff, Malek Fahd Islamic School Limited (hereinafter “the School”), seeks judicial review of a decision of the Minister for Education and Early Childhood Learning, the Hon Sarah Mitchell MLC (hereinafter “the Minister”). The impugned decision was that the Minister sought recovery from the plaintiff of all of the financial assistance provided by the Minister (or, more accurately, the Government) to the School in 2014 and 2015.

2. [2]

   The School seeks:

   1. (1)

      Orders in the nature of certiorari quashing the aforesaid decision;

   2. (2)

      A declaration that the decision was subject to jurisdictional error and/or error of law and, as a consequence, is void and of no effect;

   3. (3)

      A declaration that the Minister has a discretion, under the terms of s 83J of the Education Act 1990 (NSW), as to the amount of financial assistance to be recovered, where financial assistance was provided to a School in respect of a period when the School operated for profit or was a non-compliant School;

   4. (4)

      A declaration that the Minister is precluded by ss 14(1)(d) and 63(1) of the Limitation Act 1969 (NSW) from recovering payments of financial assistance (including by way of reduction of future payments) made in excess of 6 years prior to the recovery action being taken; and,

   5. (5)

      Costs.

3. [3]

   The “grounds” in the Summons include background and factual assertions. It is fair to say that the substantive grounds upon which it is said that the Minister has erred, in a manner which would allow the Court to quash the decision subject to these proceedings, are the following:

   1. (1)

      Ground 1: Error by the Minister in determining that there was an absence of discretion as to the amount of the financial assistance that was able to be recovered;

   2. (2)

      Ground 2: Failure of the Minister to engage with the central elements of the School’s submissions;

   3. (3)

      Ground 3: Failure of the Minister to consider mandatory relevant considerations;

   4. (4)

      Ground 4: The decision was disproportionate and legally unreasonable; and,

   5. (5)

      Ground 5: Recovery of the amounts is barred by the operation of the Limitation Act.

Background Facts and Procedural History

1. [4]

   The facts in these proceedings are relevantly uncontentious, many of them having been the subject of previous decisions and judgments to which reference will be made. There is also an Agreed Chronology that details the events and circumstances leading up to this litigation but does not deal with the early years prior to the commencement of an investigation to which reference will be made later in these reasons. [1]

2. [5]

   The plaintiff, being the School, was established by the Australian Federation of Islamic Councils Inc (“AFIC”) in 1989 and, from its establishment until March 2016, AFIC had the right to appoint all or a majority of the members of the Board of Directors of the School. The School pleads that the Directors of the School were accustomed to act in accordance with AFIC’s wishes. As a consequence, the role of AFIC rendered it a director of the School within the meaning of s 9 of the Corporations Act 2001 (Cth). [2]

3. [6]

   The defendant, as already noted, is the New South Wales Minister for Education and Early Childhood Learning. In 2014 and 2015, the New South Wales Government, on the recommendation of the Minister, provided the School with financial assistance totalling $11,065,584.69. This funding was purportedly provided pursuant to s 21 of the Education Act 1990 - 2014 and 83B of the Education Act 1990 (NSW) (hereinafter “the Act”). [3]

4. [7]

   In January 2016, the Minister for Education commenced an investigation into the School to determine, in particular, whether the School was operating for-profit or was non-compliant, within the meaning of the Act. [4]

5. [8]

   On 1 June 2017, the Non-Government Schools Not-For-Profit Advisory Committee (in these reasons called “the Advisory Committee”) determined that the School and/or its proprietor operated for-profit within the meaning of s 21A, [5] and s 83C of the Act for the years 2014 and 2015. In that Report, the Advisory Committee recommended that the Minister make a “non-compliance” declaration in respect of the School for 2014 and 2015.

6. [9]

   On 13 July 2017, following an internal review, the recommendations of the Advisory Committee were confirmed.

7. [10]

   In March 2016, the School finalised governance reforms, and asserts that it began to operate through a Board of Directors independent of AFIC. In the meantime, the School commenced proceedings in the Court, suing AFIC for breach of statutory and fiduciary duties owed to the School in relation to payments in 2014 and 2015 by the School to AFIC.

8. [11]

   On 9 November 2017, the Court issued orders reflecting an Open Statement by AFIC which offered, without admission: to repay to the School an amount of $1.42 million, together with interest; to pay a further amount of just over $530,000, with interest; to pay a refund of the payment of an amount of $2.2 million, with interest; to pay a refund of the payment of $2.7 million (or just over) in respect of arrears of rent; to pay to the School the difference between the rent paid on properties and the rent at market value; a variation to leases; and, the transfer of property at Beaumont Hills.

9. [12]

   Those proceedings concluded and judgment was delivered on 12 December 2017. [6] The orders issued by the Court were ultimately settled but are otherwise described in [132]-[134] of the aforesaid reasons for judgment. Those orders concluded that: the School was not entitled to any orders in its favour in addition to those made by the Court on 9 November 2017; and AFIC was entitled to recover rent on two properties for dates specified, calculated at market rent determined by an independent assessor, which amounts, together with interest, may be set off against the amounts owed pursuant to the orders issued on 9 November 2017.

10. [13]

    Further, over and above the reflection of the open offer, the Court ordered the School to repay AFIC a loan of $814,778.64 plus interest. [7] The orders earlier recited and/or summarised dealt with the remaining issues to be determined following the orders of 9 November 2017. [8]

11. [14]

    Following the internal review — which confirmed the finding of the Advisory Committee — and following the judgment of the Court to which reference has just been made, the School applied to the NSW Civil and Administrative Tribunal (hereinafter “NCAT” or “the Tribunal”).

12. [15]

    The application to NCAT was heard by a Senior Member on 29 and 30 July 2019. The School challenged the finding by the Advisory Committee that the School operated “for-profit” and the recommendation made to the Minister that declarations for “non-compliance” be made pursuant to the provisions of the Act. On 6 September 2019, the Senior Member confirmed the recommendation of the Advisory Committee and, to the extent necessary, the internal review. [9]

13. [16]

    The Senior Member quantified the “for-profit activity” that was outstanding, being three payments that had not been remedied by the School’s restructure and proceedings against AFIC, together with other matters. The payments identified were unrecovered payments of $37,481.25 of GST or $29,920 of leave entitlements (as a result of a finding that either could have been paid, but not both) to a former Director or someone involved in the operation of the School and/or AFIC (the “G Payments”); $11,460 in relation to payments to another person in a similar position (the “M Payments”); and, $2,200 in “minor” Board Member Payments, which the Senior Member found should be disregarded. [10]

14. [17]

    An appeal against the decision of the Senior Member was taken to an Appeal Panel of NCAT, which heard the matter on 3 December 2019. The Appeal Panel, in its decision of 6 February 2020, allowed the appeal in part, in that the Appeal Panel took the view that it was for the Minister alone to determine whether there would be recovery of the amounts of assistance; it was not a matter for the Advisory Committee to recommend. [11]

15. [18]

    As a consequence, the Appeal Panel issued orders the effect of which was to replace the order/decision made by the Senior Member and made a recommendation and/or finding that the School operated for-profit, and that all financial assistance be suspended until reform of its operation, which had been outlined in detail. The Appeal Panel made no recommendation in relation to the recovery of amounts provided for assistance in 2014 and 2015.

16. [19]

    Notwithstanding that the appeal was allowed in part, the Appeal Panel agreed with the conclusions of fact of the Senior Member, and did not refer to, or overturn, the Senior Member’s identification of the outstanding payments. The Appeal Panel further confirmed the findings that gave rise to the recommendations of the Advisory Committee and the findings of the Senior Member and confirmed orders relating to the future provision of assistance. The overturning of the recommendation as to recovery was not determined on its merits, but on the basis of the jurisdiction of the Advisory Committee.

17. [20]

    Following the NCAT Appeal Panel decision, the Minister issued a “Non-Compliance Declaration”, purportedly pursuant to the terms of s 83F(1) of the Act, by letter dated 28 May 2020. The Minister declared that the School was non-compliant for its operations in 2014 and 2015; suspended financial assistance pending satisfaction of further conditions; and, sought submissions from the School in relation to the Minister’s possible exercise of power (under s 83J of the Act) to recover the amount of financial assistance provided in 2014 and 2015. [12] A time limit was provided for the receipt of submissions.

18. [21]

    The letter referred to the Notice of 7 August 2017, issued under s 83G of the Act, addressed to the School, which set out the recommendations of the Advisory Committee.

19. [22]

    Relevantly, the 28 May 2020 letter includes the following passage:

20. [23]

    On 22 June 2020, the School lodged submissions with the Minister in relation to those issues. [13] The School, in its submissions, referred to the reform of the Board of the School, and the abovementioned proceedings in the Supreme Court and the Tribunal. The School then referred to the $4,235,457.62 of “overpayments” made by the School in 2014 and 2015 that the Advisory Committee had identified, which, it said, determined the School was not a not-for-profit institution.

21. [24]

    The School submitted that the findings were available to the Advisory Committee at the time, but that “subsequent legal decisions have shown the findings to be either wholly or partly incorrect or have reversed the transactions and properly resolved the findings”.

22. [25]

    As a consequence of its analysis, which I do not repeat in these reasons, the School submitted that the “total amount of money that was not properly spent on the operation of the school in 2014 and 2015 is, at most, $51,141.52.” The School, it submitted, had accounted for, and justified, all other payments in those calendar years.

23. [26]

    The submission of the School was that, in those circumstances, no amount of financial assistance paid to the school in 2014 and 2015 should be recovered from the School. In the alternative, if the Minister took the view that funds should be repaid, the School submitted that the amount should be the $51,141.52.

24. [27]

    Over and above the foregoing, the School submitted that the coverage, publicity, and rumour that had occurred during the course of the investigation and the dispute, both with AFIC and the Minister, had damaged the reputation of the School in the wider community and created uncertainty as to the School’s future. Thus, the Minister ought to take into account those aspects, and the damages caused, in exercising the Minister’s discretion favourably towards the School.

25. [28]

    On 7 September 2020, the Minister confirmed that the conditions that the Minister had imposed on the future provision of assistance by the Government to the School had been satisfied and the Minister lifted the suspension of financial assistance to the school for the future. [14]

26. [29]

    On 11 November 2020, the Minister, by letter, acknowledged the School’s submissions, but sought further information from the School regarding the possible recovery of financial assistance under s 83J(1) of the Act. [15] In the course of the letter, the Minister made the following comments:

27. [30]

    The School was then invited to provide any additional submissions relating to a number of detailed aspects including reputational damage and the amounts not spent on students as a consequence of any recovery. In response to that invitation, the School provided, by letter of 27 November 2020, further submissions seeking to deal with the further information that was required. [16]

28. [31]

    The further submissions do not need summarising, but it should be noted that they took issue with the notion, suggested by the Minister, that the School was seeking to question the findings made by the Advisory Committee or NCAT. Rather, according to the submission, it sought to place those findings in the context of the recovery of substantial amounts and the findings of the Court relating to market value.

29. [32]

    The School’s supplementary submission of 27 November 2020 detailed the Court and/or Tribunal decisions relating to any alleged not-for-profit activities identified by the Advisory Committee, as well as the governance reforms which had already been acknowledged by the Minister. Ultimately, the School submitted the following:

30. [33]

    Further, the School expressed its concern at the Minister’s comments, in the letter of 11 November 2020, which suggested that the recovery under s 83J of the Act is not discretionary, and that the amount of any such recovery is not discretionary. The School maintained that its previous submissions were based upon the proposition that the Minister had a discretion as to whether there would be recovery and, if there were to be recovery, the amount that is required to be repaid. The School made reference to the provisions of s 83J(1) of the Act.

31. [34]

    Over and above the foregoing, the supplementary submission expressed, in great detail, the disadvantages to the current students of the School, which would be occasioned by a recovery of that size (or any recovery at all). In the alternative, the School proposed that any recovery, by reduction in future financial assistance, should occur after the expiration of the current funding agreement with the Minister, which, the Court was made aware, was in 2024.

32. [35]

    On 5 March 2021, the Minister wrote to the School. This letter is, or contains, the decision that is challenged in these proceedings.

33. [36]

    In the letter of 5 March 2021, the Minister communicated that she had decided “to seek recovery of all the financial assistance paid to the school in 2014 and 2015, which is clarified to mean the amount of $11,065,584.69”. The Minister, purportedly for the purpose of allowing the School to adjust its operations to reduce any impact on current and future students, decided to recover that amount by reducing future amounts of financial assistance payable over the next five years until the debt is fully recovered.

34. [37]

    There are some important aspects of the letter that require extraction. The Minister made the following comments:

35. [38]

    On 4 June 2021, following the letter from the Minister, the School commenced the current proceedings.

The Education Act Legislative Scheme

1. [39]

   It is necessary to deal first with the legislative scheme under which the decision of the Minister issued, and upon which the grounds of the appeal are based.

2. [40]

   As no appeal is sought in relation to the decision of the Appeal Panel, it is unnecessary to recite the provisions of the Civil and Administrative Tribunal Act 2013 (NSW). It is sufficient for present purposes to note that an appeal lies from a decision of the Tribunal to the Supreme Court, by leave, on a question of law, under s 83 of the Civil and Administrative Tribunal Act.

3. [41]

   The foregoing is not intended as a criticism or an indication that an appeal would lie or be successful. Nevertheless, if facts were otherwise available to be challenged in these proceedings, in the circumstances, such a challenge has not been pursued.

4. [42]

   The terms, and objects, of the Education Act need greater attention. First, the Parliament’s promulgation of the Act is expressly stated to be based on the following principles: every child has a right to receive an education; the education of a child is primarily the responsibility of the child’s parents; the State’s duty is to ensure that every child receives an education of the highest quality; and, the principal responsibility of the State in the education of children is the provision of public education. [20] It is of possible relevance to the construction of the Act, in relation to the issues now before the Court, that one of the principles upon which the Act is based is the State’s duty to ensure that every child receives an education of the highest quality.

5. [43]

   The principal objects of the Act are the establishment of a curriculum including a minimum curriculum for school registration, including that which must be completed in order to complete schooling; providing for the establishment and operation of government schools; ensuring that the only schools that operate in New South Wales are government schools or non-government schools registered under the Act; to allow children to be educated at home; and, to provide for Records of School Achievement and Higher School Certificates and for the accreditation of non-government schools that are competent to present candidates for them. [21]

6. [44]

   Interestingly, in the foregoing, there is no reference to issues associated with the funding of non-government schools.

7. [45]

   There is a further provision dealing with the objects for the administration of the Act or of education. It is unnecessary to recite each of those objects, but the Court notes that those objects include: assisting each child to achieve his or her educational potential; encouraging innovation and diversity within and among schools; mitigating educational disadvantage, including disadvantage arising from gender, geographic, economic, social, cultural, lingual or other causes; the provision of education for children from non-English speaking backgrounds; and, the provision of an education for children promoting family and community values. [22]

8. [46]

   The Act is then divided into Parts dealing with the school curriculum, functions of the Minister and the New South Wales Education Standards Authority (hereinafter “NESA”) in the education portfolio. The provisions of s 20A of the Act prescribe the functions of NESA to include advising on the registration of non-government schools under Part 7; accreditation of registered non-government schools under Part 8; the monitoring of the application of NESA’s policies in schools; and advising the Minister on any other matter which the Minister requests. The last-mentioned aspect, presumably, is limited to matters associated with its authority and/or expertise.

9. [47]

   The Act also deals with attendance at school, health and safety risks at schools — in particular, arising from student behaviour — and the establishment and functioning of government schools. [23]

10. [48]

    Part 7 of the Act deals with non-government schools and home-schooling. The Part does not apply to government schools. [24] Under this Part, non-government schools may be registered either individually or as part of a system of schools, which involves slightly different procedures and approvals. [25]

11. [49]

    The approvals are granted by the Minister and, in the case of a system of less than 20 but more than 10 schools, the establishment and registration of such a system must be on the recommendation of NESA. By the operation of s 46 of the Act, the Minister is required to have regard to the advice of NESA in relation to the exercise of any of the Minister’s functions regarding the registration of a system for non-government schools. There is also a delineated process for the withdrawal of registration of either a school or a system.

12. [50]

    Section 47 of the Act sets out the registration requirements for non-government schools, which include that: the proprietor of the school be a corporation; the school to be financially viable; each officer of the school be a fit and proper person; the school must have policies and procedures for proper governance; requirements as to the competence of teaching staff; the educational facilities be adequate; there be a safe and supportive environment for students; there be minimum curriculum requirements; and that policies and procedures ensure the school’s participation in annual reporting to the Minister and/or NESA.

13. [51]

    The foregoing is not intended to be exhaustive, and NESA may set out guidelines for the assistance of a non-government school to comply with the requirements for registration. [26] It is NESA that considers the initial registration of a non-government school and provides the Minister with a written report about the application. [27] The report is required to include a recommendation as to whether the school should be registered. Assuming the Minister approves the registration of the school, the registration exists for an initial period of 12 months only. [28]

14. [52]

    Thereafter, the school applies for continuing registration and/or renewal of the registration of the school, which must be filed prior to the expiry of three months of the initial registration and at least nine months prior to the expiry of any other registration. [29] NESA provides reports and recommendations to the Minister regarding the registration and renewal of a non-government school. [30]

15. [53]

    Renewal of the registration may be for a maximum period of five years. Registration may be cancelled, or the duration of registration may be reduced, [31] if the Minister is satisfied that the requirements for, or the conditions of, registration have not been complied with at the particular school. [32] By the operation of s 65 of the Act, no person is allowed to conduct, nor to permit the conduct or to assist in the conduct of, a school that has not been registered (or is not a government school), and it is a criminal offence to do so.

16. [54]

    It should be noted that there is no legislative provision that requires a school to operate not-for-profit in order to be registered. Nor is there any provision that would allow the Minister to cancel the registration of the school on the basis that it operates “for-profit”.

17. [55]

    The provisions of the Act contained in Div 3 of Pt 7 deal with financial assistance for non-government schools. These provisions are the most relevant to the current issues between the parties.

18. [56]

    As expected, the Advisory Committee is defined as the Non-Government Schools Not-For-Profit Advisory Committee. Section 83B of the Act authorises the Minister to provide financial assistance (and other assistance) “in respect of non-government school children”.

19. [57]

    By operation of s 83B(2) of the Act, the determination of the amount of financial assistance is subject to the obligations of New South Wales under the Commonwealth/State finance agreements relating to non-government schools. The State may exceed the amount it is obliged to contribute under the Commonwealth/State agreement.

20. [58]

    Section 83BA(1) of the Act deems Commonwealth financial assistance — provided via the State to a school under the Commonwealth/State agreement (the National Education Reform Agreement) — to be an arrangement between the school and the State. Such an arrangement determines that the State is entitled to recover any debt owed by a school that relates to assistance provided by the Commonwealth. [33] The State is capable of assigning the debt to the Commonwealth. [34]

21. [59]

    The terms of s 83C of the Act are particularly relevant to these proceedings and should be extracted. So too, the terms of ss 83D, 83E, 83F and 83J need to be recited. Those provisions are in the following terms:

22. [60]

    Even though ss 83G, 83H, 83I, 83K and 83L of the Act have not been recited, it is necessary to refer briefly to their content. The provisions of s 83G provide that the Minister is not to make a “for-profit declaration” or a “non-compliant declaration” in respect of a school unless the Advisory Committee has so recommended; the school has been provided with the relevant recommendation; and, the School has been given 30 days in which to appeal.

23. [61]

    The provisions of s 83H of the Act allow the Minister to investigate a school, after consultation with the Advisory Committee and the Minister is required to have regard to any advice of the Advisory Committee in relation to the investigation.

24. [62]

    Section 83I of the Act sets out the directions that may be made to schools and/or proprietors. Section 83K sets out the membership of the Advisory Committee and its functions, and s 83L permits the Minister to publish guidelines relating to the determination of questions of whether a school is not-for-profit and/or non-compliant.

25. [63]

    As can be seen from the provisions of the Act extracted above, financial assistance to a non-government school may be suspended, reduced or made subject to conditions upon the determination that a school is “non-compliant”, based upon the circumstance that the school operates, or has operated, for-profit, [35] which is to be determined following an investigation by the Minister, in conjunction with the Advisory Committee’s advice.

Submissions of the School

1. [64]

   In some respects, the recitation of the grounds of appeal renders self-explanatory the submissions of the plaintiff School. The School relies upon the grounds of the Summons, filed 4 June 2021; written submissions dated 25 October 2021; and submissions in reply dated 3 December 2021.

2. [65]

   As a preliminary matter, it is relevant to note that the School submits that the three outstanding payments calculated in the first instance NCAT decision are those which the School has not otherwise justified and/or recovered.

3. [66]

   It is thus important to address the discrepancy that has arisen in relation to the calculation of the three payments. In the letter to the Minister of 22 June 2020 (referred to above), the School submitted that the relevant calculation was, “at most” $51,141.25. [36] In the further submissions to the Minister of 27 November 2020, the School represented that all funds had been “accounted for and/or justified” except for the sum of $43,580. [37] The Summons refers to $48,941.25 as the amount which has not been satisfactorily reconciled by proceedings bought by the School (at [14]), as well as the $43,580 referred in the 27 November 2020 letter (at [23]). In the written submissions, at [53], the School submits that “the only amount which has not been accounted for and/or justified is in the order of some $50,000”, and refers to the $43,580 amount in the 27 November 2020 letter (at [40]) (and repeated in submissions in reply at [15]). In the hearing before this Court, counsel for each party referred to, at different times, “some $50,000 figure”, a $43,000 amount, and a $45,000 amount.

4. [67]

   The above discrepancy appears to arise as a result of alternative calculations of the three unresolved “for profit” payment findings of NCAT. The lower figure of $43,580 is calculated as the sum of the lower leave-related G Payments figure, the M Payments, and excluding the Board Member Payments. The higher figure of $51,141.25 is the sum of the higher GST-related G Payments, the M Payments, and including the Board Member Payments.

5. [68]

   The exact figure is, in the context of these reasons, largely immaterial. There appears to be no dispute between the parties that a figure in the range of $43,580 - $51,141.25 is the quantum of the “for profit” payments which the School has not accounted for, justified or recovered after 2015. Relying on some calculation of the above amounts, the School made submissions in respect of each of the grounds of appeal.

6. [69]

   The plaintiff submits that, on its proper construction, s 83J(1) of the Act, recited above, affords the Minister a discretion as to whether to recover any financial assistance provided to a school while operated “for-profit” or “non-compliant”, and also a discretion as to the amount to be recovered. The dual discretion is referred to by the School as the “flexible construction”.

7. [70]

   The ordinary meaning of the text of s 83J(1) of the Act, and, in particular, the use of the term “any”, is relied upon to construe the section in a manner that the recovery can be for some financial assistance other than all of the financial assistance provided during the period in question. Further, the purpose and effect of the section, and the existence of a discretion as to whether recovery will be sought, leads to the flexible construction being one that accords with achieving harmonious goals. In that respect, the School submits that a rigid construction would lead to arbitrary, capricious and unreasonable consequences.

8. [71]

   The Minister, according to the submission of the School, proceeded on the “primary basis” of a rigid construction of the section, being that the Minister did not have a discretion as to the amount to be recovered and her discretion was limited to recovering all or none of the financial assistance (which the Minister considers to be the proper construction). [38] The evidence, it is submitted, does not support an assertion that the Minister considered an alternative construction or discretion.

9. [72]

   In the alternative, the School submitted that the Minister committed an error of law on the face of the record, which the School maintains includes the Minister’s reasons, and, therefore, judicial review is available, and the Minister’s decision may be set aside for error of law that falls short of jurisdictional error.

10. [73]

    In that regard, it should be noted at this juncture that, in reply, the School submitted that the Minister’s alternative contention that a “flexible construction” was contemplated is not supported by admissible evidence. That submission refers to the objection taken by the plaintiff to the admissibility of the letter from the Minister of 25 June 2021 on the basis that the letter amounts to reasons provided after the commencement of this proceeding.

11. [74]

    In this respect, the School submits, first, that the Minister mischaracterised the School’s submissions as cavilling with the Advisory Committees findings and failed to appreciate that the School’s reforms addressed the conditions imposed upon it; a matter going to the issue of recovery. Secondly, the School submits that the Minister failed to engage with the submission regarding the relevance of the quantum of “for-profit” activity that had not been remedied, as contrasted with the full “for-profit” quantum.

12. [75]

    Thirdly, the submission was to the effect that the Minister failed to consider the relevance of the reforms and changes in the School Board’s governance, mischaracterising the liability being on the School as currently constituted, rather than the actions attributable to those previously in control of the School. Lastly, in relation to Ground 2, the School submits that the Minister failed to engage with the remedy with respect to the property at Beaumont Hills.

13. [76]

    Having regard to the entirety of the Minister’s reasons, the School submits that the Minister failed to engage in an “active intellectual process” with respect to the School’s submissions, of 22 June and 27 November 2020, and engaged in a peremptory approach to those submissions.

14. [77]

    The School submits that a proper construction of s 83J of the Act implicitly requires the Minister to take into account the nature, context and severity of “for-profit” activity, including: the extent of any for-profit or non-compliant activity; any remedial action taken by the School; the extent to which financial assistance previously used for for-profit or non-compliant activity has been recovered by the School; and, the identity of those responsible for the School’s for-profit or non-compliant activity and their current role (if any) in the governance of the School.

15. [78]

    I note at this stage that the Minister, in her Response to Summons, [39] admitted that the foregoing matters are relevant. Notwithstanding that admission, it does not appear that the Minister admits that the considerations raised by the School were mandatory considerations or considerations required to be taken into account, as distinct from matters that were relevant, in the sense that they were not extraneous to the exercise of discretion reposed in the Minister.

16. [79]

    In considering all the relevant matters — including the former control of the School by AFIC, the governance reforms and the remaining quantum of “for-profit” activity for which the School’s governing body, as presently constituted, is accountable — the School submits that the request to repay the full quantum, being approximately $11 million, is grossly disproportionate and legally unreasonable. The only amount, according to the School, justified by the foregoing circumstances is recovery of an amount in the order of between $43,580 and $51,141.25.

17. [80]

    Further, in reply, the School submitted that the quantum of “for-profit” activity, the circumstances in which it occurred, and the remedial action taken by the School, are factors relevant to the exercise of discretion under s 83J of the Act. The School clarified that it does not contend that s 83J of the Act is limited to the recovery of amounts expended by a School on non-compliant or for-profit activity.

18. [81]

    The School submits that financial assistance is recoverable under s 83J of the Act and, as a consequence, is “money recoverable by virtue of an enactment” as described in s 14(1)(d) of the Limitation Act.

19. [82]

    Therefore, there is a limitation period on the recovery of monies, being six years from the date on which the cause of action first accrued to the Minister, which is, on the School’s submissions, six years after the payment was made to the School. As the payments to the School were made in 2014 and 2015, the School submits that the right to recover the amounts paid was extinguished in 2020 and 2021, respectively.

20. [83]

    The submission also depends upon the terms of s 63(1) of the Limitation Act, which is in the following terms:

21. [84]

    Thus, the School submits that, at the expiration of the limitation period of six years from the date upon which payment was made to the School, the right and title of the Minister — being the person formerly having a cause of action to the debt, damages or other money — is extinguished, whether or not the Minister chooses to recover the amount as a debt in a court of competent jurisdiction. On the School’s submission, it matters not that recovery has been sought by reducing future amounts of financial assistance, as was the circumstance in the matter currently before the Court.

Submissions of the Minister

1. [85]

   The Minister submitted the proper construction of s 83J of the Act is determined by the language of the provision to recover “the amount” (emphasis added). In the submission of the Minister, the use of the definite article signifies that it should correspond with the amount of financial assistance provided. The Second Reading Speech, [40] the Minister submits, confirms a focus on the correlation between the provision of assistance and the period, as distinct from the quantum, of non-compliant/for-profit activity.

2. [86]

   In the alternative, the Minister submits that the Minister did otherwise consider the School’s submissions as to the amount of financial assistance to be recovered. A proper construction of the response of the Minister and her reasons would include the proposition that the Minister did not believe the Act permitted her a discretion to recover part, but not all, of the financial assistance. However, the Minister submits that, even if her belief as to the proper construction of the Act was wrong and there were a discretion in that respect, she considered that she would exercise her discretion to recover all of the amount.

3. [87]

   The Minister submitted that, in making the decision, she addressed all elements to which the School referred in submissions to her. Further, the Minister submitted that the elements that the plaintiff submits the Minister failed to consider is an attempt by the School impermissibly to have the Court undertake a merits review of the Minister’s decision.

4. [88]

   A proper reading of the exchange, the decision of the Minister and her reasons discloses that the Minister, on her submission, engaged in an “active intellectual process”, in relation to the School’s submissions and did consider, but ultimately rejected, the reasons advanced.

5. [89]

   The Minister points to the fact that the Act does not identify any matter or thing to which the Minister must have regard or even should have regard. There are no prescribed criteria in the exercise of the Minister’s discretion. Further, there is nothing in the subject matter, scope or purpose of the Act which supports the implication that the Minister is bound, as a matter of statutory construction, to have regard to the matters alleged by the plaintiff.

6. [90]

   The Minister submits that s 83J of the Act is based on the “important principle” that where an investigation finds that a school is operating for profit, then it is reasonable that the school should repay the public funds received by it when in breach. This is particularly so when read in the context of Part 7, Division 3 of the Act as a whole.

7. [91]

   Alternatively, in any event, the Minister did have regard to the considerations alleged by the School. The Minister reached a conclusion that those matters did not warrant a different outcome. Such a conclusion cannot be equated with a failure to take the considerations into account.

8. [92]

   The Minister submits that the submission under this ground seeks to have the Court embark impermissibly upon a merits review of the Minister’s decision. The decision cannot be said, having regard to the Minister’s reasons, to lack an evident and intelligible justification or to reflect a disproportionate exercise of the power conferred by s 83J of the Act.

9. [93]

   The Minister submits that the School’s premise that the Minister should recover the difference between the amount of financial assistance provided and the amount expended on the non-compliant or for-profit activity is not supported by the terms of the provision or the extrinsic material. This is an underlying premise to the submission of the School.

10. [94]

    The Minister submits that the existence of the power of recovery to recoup finances where a school is non-compliant provides a strong basis for rejecting the School’s suggestion that the relevant portion to be recouped is the amount calculated by the School (between $43,580 and $51,141.25).

11. [95]

    First, the Minister submits that the power reposed in the Minister to recover financial assistance by s 83J of the Act is not an “action” or “cause of action” within the meaning of s 14 of the Limitation Act and is not a “proceeding in a court” within the meaning of s 11(1) of the Limitation Act. Therefore, the recovery of financial assistance otherwise than by way of curial proceedings falls outside the purview of the Limitation Act. The Court notes that the definition of “action” in the Limitation Act is inclusive, not exhaustive. [41]

12. [96]

    Alternatively, if there were a limitation to a cause of action that may be commenced or prosecuted by the Minister under s 83J of the Act, the power of recovery is only triggered by the making of a Declaration that the School is a for-profit or non-compliant School. Thus, the cause of action would not arise until 28 May 2020, when the Declaration by the Minister was made and the decision of the Minister falls within the applicable 6-year limitation period.

Statutory Construction: Principles

1. [97]

   The principles of statutory construction have been stated by the highest authority on many occasions. It is unnecessary to deal with them at length. Nevertheless, it is necessary to restate some basic principles.

2. [98]

   First, it should be reiterated that the prima facie basis upon which a statute or other instrument will be construed is that the provisions of the statute or other instrument are intended to give effect to harmonious goals. Secondly, the task of a court in construing legislation is to give effect to the legislative purpose derived from the terms of the statute. In this way, it is the terms and words utilised in the statute from which the Court is to derive the purpose of the statute, bearing in mind that the statute must be read as a whole. [42]

3. [99]

   Thirdly, where there are tensions between the different provisions of the statute that are incapable of being reconciled by a purposive construction, it may be necessary to determine which of the provisions is the “leading provision” and which is the “subordinate provision”. [43]

4. [100]

   The other aspect that deserves reiterating from the judgment on Project Blue Sky, supra, is the issue associated with the distinction between mandatory and directory provisions. Notwithstanding the comments of the High Court deprecating the use of the terms, the terms continue to be utilised.

5. [101]

   Nevertheless, the distinction needs to be understood as a conclusion based upon the proper construction of the statutory provisions, not a basis upon which the statutory provision will be construed. In other words, the first step is the purposive construction of the statute as a whole, such that it is consistent with the language and purpose of all of the provisions of the statute, which may then lead to a conclusion that a provision is mandatory or directory. [44]

6. [102]

   It is unnecessary, for the purposes of any issue in these proceedings, to deal with whether, if a provision were “mandatory”, an act done otherwise than in accordance with the provision, or not done in accordance with a provision, would be invalid.

Jurisdiction of the Court

1. [103]

   The summons for relief seeks, as earlier stated, orders in the nature of certiorari and/or a declaration of jurisdictional error, and that the decision is void and of no effect. It also seeks further declarations relating to the proper interpretation of s 83J of the Act, namely, whether the Minister has a discretion as to the amount to be recovered under that provision, and declarations as to the operation of the Limitation Act, to the effect that the Minister was incapable of recovering payments on the basis that the right so to do had been extinguished.

2. [104]

   Neither party addressed the Court on the limitations applicable to the issuing of orders in the nature of certiorari. Further, neither party dealt with the capacity of the Court to base judicial review on the reasons of the Minister.

3. [105]

   The declarations sought will not, if issued, have the effect of quashing the decision. Prohibition, if available, affects the consequences of the decision, not the decision itself. Orders in the nature of prohibition have not been sought, although the School submits that there was jurisdictional error.

4. [106]

   The first task of a court or tribunal, in dealing with a proceeding commenced before it, is to ensure that it has the jurisdiction to deal with the matter. Most often, because of the number of times a matter of the type has been before the Court, jurisdiction is assumed. Nevertheless, there are times when it is necessary to deal with the jurisdictional question. This is one of them.

5. [107]

   The provisions of s 69 of the Supreme Court Act 1970 (NSW) abolish the writs — previously referred to as prerogative writs and federally referred to as Constitutional writs — and require the Court, in lieu of such writs, to make orders in the nature of the writs. Thus, the provisions of s 69 of the Supreme Court Act abolish the writ of certiorari (and prohibition and mandamus) and continue the Court’s jurisdiction to grant the relief but, in so doing, require the Court not to issue writs.

6. [108]

   The first prayer in the School’s Summons seeks an order of that nature. The jurisdiction to issue such an order is continued only where the relief, remedy or writ might otherwise have issued. [45] As a consequence, the limitations on the issue of certiorari apply to orders in the nature of certiorari.

7. [109]

   It is next necessary to note, in passing, that an intermediate appellate court should not depart from considered dicta of a majority of the High Court, and neither an intermediate appellate court nor a trial judge should depart from decisions of another intermediate appellate court, relevantly, on the common law of Australia. This would, necessarily, include the limitations on the issue of certiorari.

8. [110]

   There is a qualification on the second of those principles, namely, that there can be departure from an intermediate appellate court of another jurisdiction in circumstances where the interpretation is plainly wrong or there is a compelling reason so to do. [46] The obvious lacuna in the statement of principle in Hill v Zuda, supra, ought not be understood to allow a trial judge to depart from seriously considered dicta of a majority judgment of the High Court.

9. [111]

   The High Court in Kirk [47] was required to deal with the efficaciousness of a privative clause preventing, amongst others, orders in the nature of certiorari against the then Industrial Court of New South Wales. In the course of its analysis, the High Court determined that a state legislature could not remove from the jurisdiction of a State Supreme Court the capacity to issue certiorari, or orders in the nature thereof, for jurisdictional error.

10. [112]

    The High Court also remarked, as dicta which was strictly unnecessary for the specific issue then before it, that a state legislature could deny the availability of relief for non-jurisdictional error of law appearing on the face of the record. [48] The foregoing dictum, binding on this Court, is a principle from which the Court may not depart.

11. [113]

    The High Court conclusion on the capacity of the state legislature to restrict or to abolish the jurisdiction of the Supreme Court to issue certiorari for non-jurisdictional error of law was reached on the basis of what was said to be the history of certiorari as an essential element of a supreme court, which, at the time of Federation, was confined to jurisdictional error. In so doing, the High Court referred to the judgment of the Privy Council in Willan. [49]

12. [114]

    The finding, albeit obiter, of the High Court in Kirk — to the effect that State legislation could deny the availability of relief for non-jurisdictional error of law appearing on the face of the record — is binding, but not directly relevant to the issues in these proceedings. There is no privative clause limiting the power of the Court to issue an appropriate remedy against the Minister for a decision under the Act. The question nevertheless arises as to whether certiorari is an “appropriate remedy”.

13. [115]

    The history upon which the High Court relied in coming to the dictum is more relevant. Essentially, that history was not that the superior courts, at the time of Federation, did not grant certiorari for non-jurisdictional error; it was that the UK Legislature, at the time of Federation, had the capacity to limit the circumstances in which certiorari would issue and limit, in that respect, the jurisdiction of the Court. However, the UK Legislature was a plenary legislature, and could, if it so desired, abolish the superior court in question or create another superior court of equal status.

14. [116]

    In other words, the reliance by the High Court on Willan, supra, was not to the effect that certiorari was not an inherent jurisdiction of a superior court of record at the time of Federation, but that a plenary legislature could deprive a superior court of the jurisdiction to issue the writ in cases of non-jurisdictional error. Of course, in Australia, leaving aside the particular provisions of a State Constitution, the State legislature is not plenary because of the existence of the Constitution and, in particular, s 73 of the Constitution. A State legislature is incapable of depriving the High Court of its position at the apex of the exercise of judicial power, both State and Federal.

15. [117]

    Turning to more directly relevant aspects, the provisions of s 69 of the Supreme Court Act, as earlier stated, did not grant to the Court the jurisdiction to issue certiorari; instead, it prohibits the issue of a writ of certiorari where the Court previously had jurisdiction to grant such relief and, in lieu thereof, requires, where the Court otherwise would grant the writ, to issue an order in the nature of certiorari. Therefore, the Court’s jurisdiction to issue certiorari is dependent upon its inherent jurisdiction, recognised by s 23 of the Supreme Court Act, and, to some extent at least, ss 63 and 91 of the Supreme Court Act.

16. [118]

    In Willan, the Privy Council dealt with an appeal based upon the proposition that the Supreme Court of Victoria had no power to issue certiorari against the Court of Mines. The argument was based upon two premises: first, that the Court of Mines was not an “inferior court in the then Colony”; and, secondly, that the privative clause said to operate to restrict appeals and/or the issue of prerogative relief was effective.

17. [119]

    The challenge in the Supreme Court of Victoria was that the Court of Mines acted without jurisdiction and had been induced so to do by the fraud of the petitioning creditor. There were subsidiary arguments relating to whether the process of bankruptcy was a “proceeding”.

18. [120]

    The difficulty with relying upon comments of the House of Lords on the jurisdiction of the superior courts in the United Kingdom and the capacity of the UK Legislature to abolish or to qualify a superior court’s jurisdiction is that, first, it assumes that such a jurisdiction exists; and, secondly, it depends as much on the power of the legislature as it does on the inherent nature of the court’s jurisdiction.

19. [121]

    The UK Legislature is a plenary legislature and can abolish (and since that time has abolished and replaced) the superior courts in the UK. For the same reasons, the UK Legislature could deprive one or other of the superior courts of an aspect of its jurisdiction.

20. [122]

    Similarly, the Victorian Supreme Court, which was the subject of discussion in Willan, was created by a statute of the Victorian legislature, [50] under the authority of Imperial Legislation. [51] As a consequence, the Victorian legislature, at the time immediately prior to Federation, could have enacted legislation of the same kind.

21. [123]

    On the other hand, the New South Wales Supreme Court was established by Royal Charter pursuant to an Act of the Imperial Parliament. [52] It is a nice question whether, at the time immediately prior to Federation, the New South Wales Parliament could legislate to abolish the New South Wales Supreme Court or qualify any of the jurisdiction granted to it by the Imperial Act and/or the Royal Charter.

22. [124]

    As stated, since Federation, the State Legislatures have been bound by the provisions of Chapter III of the Australian Constitution, which requires the existence of the Supreme Court in each State. [53]

23. [125]

    While the foregoing has been much longer and less relevant than might otherwise be thought to be necessary, it is appropriate to summarise the authorities thus far considered to have the following effect. It is an aspect of the inherent jurisdiction of a Supreme Court that it has the ability to issue certiorari. In NSW, orders in the nature of certiorari suffer the same limitations as did the original writ in relation to the jurisdictional requirements necessary for the issue of such orders, subject to the terms of the statute itself, being the Supreme Court Act.

24. [126]

    The High Court in deciding Kirk was not determining that the Supreme Court did not have inherent jurisdiction to issue certiorari. Nor was it deciding the limits of the legislative power of a State, although such limitations may have been an effect of its judgment.

25. [127]

    Rather, the High Court determined that a Supreme Court still met the definition of such a Court, where it had been denied the jurisdiction to issue the writ of certiorari for non-jurisdictional error. But it did not meet the description of a Supreme Court, for the purpose of s 73 of the Constitution, if it were denied the ability to issue certiorari, or orders in the nature of certiorari, for jurisdictional error. In the absence of some privative clause, the Court has the inherent jurisdiction to issue certiorari for error of law.

26. [128]

    The term “certiorari” derives from the opening word of the Latin writ, the opening two words of which were “Certiorari volumus”, meaning “we wish to be informed”, and the word “certiorari” is the passive infinitive of the verb “to inform”. This terminology derives from the circumstance that the superior courts, historically, called up the entirety of a matter in order that it could be heard and determined in accordance with law. The writ developed such that the “record” was removed for the purpose of determining whether, on the face of the record, there had been error of law or jurisdictional error.

27. [129]

    The writ was used overwhelmingly in criminal matters, in which the most arcane technical irregularity in an Indictment would give rise to the issue of certiorari. Nevertheless, because, in criminal matters, the record consisted of the Indictment, the verdict and the sentence, and jurisdiction was conferred by arraignment on indictment, jurisdictional error was the overwhelming basis upon which certiorari issued.

28. [130]

    In civil proceedings, certiorari was used less often but still depended upon the nature of the record, which included the pleadings and the judgment, and very little else. The term “judgment” should be distinguished from the reasons for judgment.

29. [131]

    Leaving aside some comments of Lord Denning, [54] the accepted view is that certiorari will lie for error on the face of the record, and the record does not contain the reasons for judgment or the evidence upon which the judgment depends. It will usually comprise the documents initiating the proceedings, the pleadings and the determination of the inferior court or tribunal. [55] In Craig, supra, the High Court said:

30. [132]

    Thus, the mere fact that a court prefaced the orders by the phrase “for the foregoing reasons, the Court makes the following orders”, does not render the reasons part of the record. On the other hand, were the Court to make orders that, for example, “discovery will be given on the categories to which these reasons refer” then, at least to the extent that the reasons refer to the categories of discovery, those parts of the reasons would be part of the record.

31. [133]

    To summarise, an order in the nature of certiorari will issue only for error on the face of the record, whether jurisdictional or non-jurisdictional (assuming, in the latter case, there is no privative clause). I should add, only as a matter of caution, that I do not suggest that a privative clause does not have an effect in determining whether error is jurisdictional and, in so doing, a court, construing the jurisdiction of an inferior court or tribunal, would utilise the Hickman principles. [56]

32. [134]

    The foregoing analysis is necessary for the purpose of determining that which then flows from the attempts to obtain certiorari in relation to the decision of the Minister and, in so doing, relying on the reasons that the Minister provided for the decision she derived.

33. [135]

    The history of the expansion of certiorari is relevant to the current proceedings for the manner in which it impacts upon the purpose and construction of the provisions of s 69 of the Supreme Court Act. These provisions are in the following terms:

34. [136]

    The obvious purpose of the promulgation of s 69 of the Supreme Court Act is to abolish some of the technicalities and limitations otherwise associated with the issue of a writ. As can be seen from the foregoing extract, subsections (1) and (2) refer generally to prerogative relief, without restriction.

35. [137]

    It is relevant to address specifically the consequence of the provisions of subsection (3) and (4) of s 69 of the Supreme Court Act which refer, expressly or by reference, to the determination of “a court or tribunal”. Neither party has addressed the Court on whether the reference to a “court or tribunal” is in the strict sense, or whether the term utilises the term “court or tribunal” to refer to any determinative body to which certiorari would otherwise issue, assuming error of the requisite kind.

36. [138]

    It should be noted that, where a statute requires the application of a particular principle or the publication of reasons as part of the record, then the reasons will necessarily form part of the record. Even if, where the statute requires reasons, the reasons are not, under the statute, to form part of the record, a failure to publish reasons will be an error of law. [57] Thus, where a statute requires a determinative decision-maker to provide reasons for the decision, the absence of reasons is an error of law, being a breach of the statute conferring the jurisdiction.

37. [139]

    Historically, certiorari issued against inferior courts acting “judicially”. However, the term “judicially” developed so it was not used in a confined manner. The historical use of certiorari is summarised in the De Smith Judicial Review in the following terms:

38. [140]

    The origins of certiorari were described by the Ontario Supreme Court, Appellate Division in the following comment:

39. [141]

    The burgeoning nature of government action and the determination of rights by administrative officials led to the expansion of certiorari and the issue of certiorari. Consequently, it may issue not simply against courts, or even tribunals, but against any person or body of persons “having legal authority to determine questions affecting the rights of subjects”. [60]

40. [142]

    The foregoing statement of principle by Lord Atkin in the Electricity Commissioners Case, supra, is seen as the classic statement of the circumstances that will allow certiorari to issue against a decision-maker. By reference to the judgment of the High Court in Craig, supra, it has been said that the High Court left open for future consideration the issue of the bodies that were amenable to certiorari. [61] The passage in Craig is as follows:

41. [143]

    The passage in Craig, to which the learned authors referred in their statement about preserving for future consideration the bodies amenable to certiorari, was directed to an argument that the District Court of South Australia, when exercising its criminal jurisdiction, is not an “inferior” court. The District Court, ordinarily, is a court of record, but not a superior court of record.

42. [144]

    The authorities, to which the judgment of the High Court in Craig refer, disclose that the Court was there concerned not with the bodies or persons beyond a court or tribunal, in the strict sense, amenable to certiorari, but whether the District Court was amenable to certiorari on the basis that it was not an “inferior court”. Superior courts of record of general jurisdiction are not ordinarily (leaving aside the provisions of s 75(v) of the Constitution) amenable to any of these prerogative writs. [63]

43. [145]

    The issue before the High Court was whether the District Court, being the final trial court in criminal prosecutions, was, in that capacity, a superior court of record and not, therefore, amenable to prerogative relief. The reference to certiorari being directed only to an inferior court or certain tribunals exercising governmental powers was used in contradistinction to a superior court of record, which is not amenable to such writs. As pointed out in Aronson, Groves and Weeks, supra, certiorari has been assumed to run against administrative officials and Ministers on innumerable occasions. [64]

44. [146]

    In my view, it is unnecessary to rely upon implication or the number of judgments in which certiorari against a Minister has been assumed in order to determine that the reach of certiorari will run to a Minister, at least in the circumstances of the kind of exercise of discretion, determination and/or adjudication undertaken in the circumstances of these proceedings.

45. [147]

    In the Northern Land Council [65] Case, the High Court was dealing with a claim for the issue of certiorari against the Commissioner and, in the alternative, mandamus with certiorari as an adjunct or ancillary remedy. In the course of their reasons for judgment, the majority of the High Court dealt with the availability of certiorari against the Minister.

46. [148]

    In his judgment, Gibbs CJ referred to the capacity of the Court to decide for itself the question before it and made clear that Ministers of the Government, either in an adjudicative role or in advising the representative of the Crown, were amenable to judicial review in a range of circumstances, including an exercise of power extraneous to the purpose for which it is to be utilised and clarified that if a statutory power is granted to the Crown for one purpose, “it is clear that it is not lawfully exercised if it is used for another”. [66]

47. [149]

    While the reasons for judgment of Mason J (as he then was) express, in his own words, the reason for his judgment, his Honour also agreed with the reasons of Stephen J, who said:

48. [150]

    Apart from agreeing to the comments and reasons of Stephen J, Mason J said:

49. [151]

    In his reasons for judgment, Mason J referred to the purpose of preventing unnecessary judicial intervention and the proposition that it is better and more fairly achieved by denying review in those cases where review is not available, or the exercise of power is not susceptible to the review. Referring to the “old rule” — being that the acts of the Crown or its representative cannot be impugned — his Honour referred to the reasons for judgment of Stephen J, who pointed out many recent decisions and statements made by the highest authorities in Australia, the United Kingdom, Canada and New Zealand, in which the old rule was said to have no application to the exercise of statutory powers, or in which the old rule was ignored in determining and remedying legal error by judicial review. As to the exercise of a statutory discretion or power, Mason J summarised the current principle in the following passage:

50. [152]

    The consequence of the foregoing history of certiorari, reveals that it was a writ that originally issued only against “courts” and then “courts and tribunals”. Eventually, any person acting “judicially”, which was to be understood to mean any persons or group of persons having legal authority to determine questions affecting the rights of subjects, [70] were amenable to certiorari or orders in the nature thereof.

51. [153]

    It would seem that the effect of the foregoing statement of principles is that the Minister’s exercise of discretion or exercise of a statutory power is amenable to judicial review and, in particular, to certiorari, when appropriate. It may be that the recommendations of the Advisory Committee are also amenable to certiorari, but that issue does not arise in these proceedings.

52. [154]

    Further, the task undertaken by the Minister and the determination issued is one which, in the sense previously used, “adjudicate” on the rights of the School, the effect of which was to impact significantly and adversely on the rights of the School to funding to which it would otherwise be entitled.

53. [155]

    Ultimately, the question that must be asked is when certiorari is sought against a Minister or a person determining the question affecting the rights of others, pursuant to a statute, is that person acting as a “court or tribunal” within the terms of s 69(3) and, therefore, within the terms of s 69(4) of the Supreme Court Act.

54. [156]

    In my view, the answer to the foregoing question is in the affirmative. The provisions of s 69(3) of the Supreme Court Act purport to provide the Court with jurisdiction to quash the ultimate determination of the court or tribunal and to substitute a determination, if only one lawful determination is available. There is no purpose or object that would suggest that such jurisdictional powers should be confined to only some of the persons or bodies amenable to the writ of certiorari.

55. [157]

    On the contrary, given that the Court, when the writ of certiorari issued, was capable of “quashing” the judgment of the body amenable to certiorari, the provision would seem to be, in part, a clarification of the jurisdiction and power — supplemented by the ancillary jurisdiction to substitute the Court’s determination, if only one other lawful decision is available.

56. [158]

    Construing the provisions of s 69(3) of the Supreme Court Act in the foregoing manner is logical; it accords with the history of the provision, bearing in mind the history of the development of certiorari; it meets the purposes of the promulgation of s 69 of the Supreme Court Act; and, it is a logical and common sense approach to the provision.

57. [159]

    Such a construction with respect to subsection (3) necessarily results in s 69(4) of the Supreme Court Act having the effect that the face of the record includes the reasons expressed by any person amenable to certiorari for that person’s ultimate determination. In my view, this is the appropriate and correct construction of the provision.

58. [160]

    Strictly, because of the foregoing interpretation of s 69 of the Supreme Court Act, it is unnecessary to determine whether, absent the provisions of s 69 of the Supreme Court Act, the reasons of the Minister, form part of the record to which the Court is confined when addressing whether grounds have been made out for the grant of orders of the kind sought.

59. [161]

    Nevertheless, because the foregoing interpretation of s 69 is contentious, the Court will determine whether the reasons of the Minister would be part of the record, under the common law, and may be examined for the purpose of determining whether grounds have been established for the issue of orders in the nature of certiorari.

60. [162]

    These reasons have previously extracted significant sections of the correspondence between the parties, which correspondence includes some of the reasons of the Minister. There is also included the history of the proceedings.

61. [163]

    While the correspondence between the parties is necessary for understanding the history and the context in which this dispute arises, much of it would not form part of the “record”, even on the extended meaning of the face of the record to which the Court has earlier referred.

62. [164]

    As earlier indicated, on 5 March 2021, the Minister wrote to the school communicating her decision to exercise her discretion to recover the amount of financial assistance provided to the School in 2014 and 2015, by reducing future amounts of financial assistance payable to the School for five years until the amount is fully recovered.

63. [165]

    That decision was purportedly made under the provisions of s 83J of the Act. The determination or decision is confined to the second paragraph of that letter and, in respect to the method of recovery, to the third paragraph of the letter. The remainder of the letter and all that has been previously extracted are part of the reasons for the determination. The second and third paragraphs of the letter are in the following terms:

64. [166]

    Given that the record includes the initiating documents and the pleadings, it seems appropriate that, in these circumstances, the letter inviting submissions and the substance of the submissions form part of the record. The Court has already extracted a significant section of the letter from the Minister inviting submissions, being the letter entitled Notice of Non-Compliance or “Non-Compliance Declaration” dated 28 May 2020. In the course of that letter, as emphasised by the Court previously, the Minister informed the School that it was being provided with “an opportunity to make submissions as to whether recovery should occur, the timing and amount of any financial assistance to be recovered”. [72]

65. [167]

    In the absence of an ability by the Court to take into account the reasons of the Minister, the Minister, on the face of the record, has requested submissions on, not only the question of whether recovery should occur, but the timing and amount to be recovered.

66. [168]

    While the Act does not permit the Minister to exercise her discretion in the absence of a recommendation from the Advisory Committee, there is no express provision in the Act requiring the Minister to provide reasons for the exercise of her discretion. The Act provides for a person aggrieved to appeal against the recommendation of the Advisory Committee to NCAT. In the circumstances now before the Court, the School undertook such an appeal. As was pointed out by the Appeal Panel at NCAT, there is no appeal to NCAT against the exercise of the discretion of the Minister to recover.

67. [169]

    The common law imposes an obligation on courts or judicial officers, as part of the judicial process, to provide reasons for judgment. Subject to any statutory exception, there is no general common law duty on an administrative officer, even one whose decision or determination may be subject to certiorari, to provide reasons for the determination. [73] The foregoing statement of principle remains good law even though courts have often construed legislation liberally so as to impose such a duty. [74]

68. [170]

    In Vegan, Basten JA discussed the difficulties associated with the absence of a duty to provide reasons and the diminishing importance of the authorities upon which the High Court relied in Osmond. The discussion is persuasive. [75] I have previously discussed the development of the law in this area and said:

69. [171]

    The legislative scheme embodied in the Act, as it applies in this area, promotes natural justice, at least during the process undertaken by the Advisory Committee. Other than the provision by the Minister of notice that a recommendation has been made, and the requirement to allow a time period during which an appeal to NCAT may be lodged, there does not seem to be any express requirement for natural justice on the ultimate determination by the Minister of the discretion to be exercised. Notwithstanding the lack of expression of a statutory requirement, it is commendable that the Minister has afforded the School natural justice and invited and received, and seemingly considered, the School’s submissions.

70. [172]

    Nevertheless, there is no express or implied requirement in the Act for the Minister to provide reasons for the exercise of the ultimate discretion to recover any amount paid during the period when the School operated “for-profit”.

71. [173]

    Given the absence of a requirement in the Act on the Minister to provide reasons — and the authority (binding on the Court as presently constituted) to the effect that there is no general duty to provide reasons in the absence of a statutory provision or implication — if the provisions of s 69(3) of the Supreme Court Act do not apply to the Minister in the exercise of her discretion (and, as a consequence, the provisions of s 69(4) of the Supreme Court Act do not apply), there would be no duty to provide reasons for the exercise of the discretion. In those circumstances, the absence of reasons would not be an error of law and would not, of itself, give rise to the issue of orders in the nature of certiorari. On the other hand, if s 69(4) of the Supreme Court Act applies, as I have held, then, subject to any contrary, necessary intendment in a particular statue, s 69(4) may be a factor in determining whether an administrative officer is required to give reasons.

72. [174]

    I will continue on the basis that I will apply the construction of s 69(4) of the Supreme Court Act, namely, that the term “court or tribunal” in s 69(3) is a reference to any person or body whose decision would be amenable to the issue of orders in the nature of certiorari. As a consequence, the Minister’s reasons for the ultimate decision are part of the record upon which the School can rely to establish error of law or jurisdiction.

73. [175]

    The reason the foregoing issue is important is that the School relies upon the reasons of the Minister, provided in the correspondence referred to above, to establish error. Further, while the Summons seeks declarations, a declaration does not quash the decision already provided; it declares a right. Prohibition operates on the effect of a decision, not the decision itself. It is for this reason that a decision that has no continuing effect is incapable of being subject to prohibition.

74. [176]

    Mandamus, on the other hand, may be available if the decision is a constructive failure to exercise the jurisdiction or authority conferred by the Act on the Minister. If the exercise of discretion by the Minister were vitiated or voided as a result of an error, then it may be possible for mandamus to issue to compel the Minister to exercise the discretion in accordance with the law as propounded by the Court.

Construction of the Education Act

1. [177]

   There are minor, and somewhat insignificant, tensions in the wording of the Act, particularly in relation to non-government school funding. The provisions of s 83E of the Act permit the Minister to suspend, reduce or impose conditions on the provision of “financial assistance… to or for the benefit of a school”. Section 83J of the Act permits the Minister to recover “the amount of any financial assistance provided… for the benefit of a school”. The provisions of s 83C of the Act, as recited above, make clear that the Minister must not provide “financial assistance… to or for the benefit of a school” if it operates for profit.

2. [178]

   The tension arises from the enabling provision granting the Minister the capacity to provide financial assistance. According to the provisions of s 83B(1), the Minister provides “financial assistance or other assistance … in respect of non-government school children.” (Emphasis added.)

3. [179]

   The financial assistance is subject to the obligations of the State under the National Education Reform Agreement (or its replacement) and may be provided directly to the school that the children attend or, relevantly, a person or body approved by the Minister for that purpose. The material before the Court does not suggest that the School is part of a system of non-government schools or an otherwise approved system under the Commonwealth Act. [77] Thus, the terms of the Act provide for financial assistance in respect of non-government school children; not financial assistance for the school or its benefit.

4. [180]

   I have referred to “minor” in relation to the tension, because it seems that the tension in the wording is easily reconciled. The assistance is paid “in respect of non-government school children”, not to non-government school children. The provisions of s 83B(6) do not permit the Minister to provide such assistance to the school children.

5. [181]

   Leaving aside, for present purposes, the payment of monies to a system (of either kind), the only assistance that may be provided in respect of non-government school children must be provided to the school itself. It is obvious that the appropriate construction of the Act is that, when the legislation utilises a term referring to the provision of financial assistance to a school, it is referring to financial assistance “in respect of non-government school children” which is paid to the school.

6. [182]

   There is a further tension in the purpose expressed by the legislation in that the fact, if it were the fact, that a school operated for profit is not the product of any conduct by any of the students attending the school. As already stated, the legislation must be read as a whole, and the construction given should be purposive. If the purpose derived from the provisions of s 83B(1) of the Act is to benefit “school children”, then depriving the school that the children attend of funding may have the opposite effect to the object obviously embodied in the provisions of s 83B(1).

7. [183]

   Nevertheless, the legislation is clear in some respects. From the provisions of s 83J(1) of the Act, financial assistance may be provided under the provisions in Pt 7, Div 3 and under other powers. Thus, more than one kind of financial assistance may be paid, or may have been paid, to a school.

8. [184]

   During the course of submissions of the parties, the Court enquired as to the manner in which recurrent funding was paid. The Court was informed by Senior Counsel for the plaintiff that there was one annual payment of recurrent funding. There are also categories of financial assistance for capital works and/or loan repayments.

9. [185]

   The recurrent funding is, as earlier mentioned, paid as a result of the Commonwealth Funding Agreement (the National Education Reform Agreement) and is calculated on the basis of averages of parental income (and possibly assets); parental educational qualifications and other such measures of economic status; together with additional payments for above minimal numbers of students with a disability or in defined vulnerable circumstances. The annual payment that is made, on the information provided during submissions, in February is reconciled in October (or thereabouts) and, to the extent necessary, further payment is made.

10. [186]

    Nevertheless, the recurrent funding to which the foregoing refers is one kind of financial assistance. Other kinds of financial assistance are provided to schools differently and probably calculated on very different bases.

11. [187]

    Another issue that requires comment is that which was raised by the Minister in the course of her submissions in relation to the Limitation Act ground of appeal. The Minister stated that, in order for the cause of action to be complete, there needed to be a Declaration that the school is either operating on a “for-profit” basis or is otherwise “non-compliant”. On its face, such a submission seems to be a misreading of the Act. While the Minister is empowered to declare a school “non-compliant” [78] or that a school “operates for profit”, [79] each section expressly provides that the Minister’s obligations and/or discretion is not conditioned on the making of the Declaration. [80]

12. [188]

    Thus, the power of the Minister to recover monies under the provisions of s 83J of the Act is not expressly conditioned on the issuing of a Declaration that the school is either non-compliant or operating for-profit. In the present circumstance, however, where the Minister has instituted an investigation under s 83H of the Act, it is conditioned on the receipt by the Minister of a recommendation of or advice from the Advisory Committee to which reference has already been made.

13. [189]

    I now come to the fundamental issue between the parties, being the existence of a discretion in the Minister to seek to recover an amount less than the full amount of financial assistance provided during a period in which the school is either for-profit or non-compliant. This question is to be determined by the construction of s 83J(1) of the Act within the context of the Act as a whole.

14. [190]

    On the view I take of the facts, it is probably unnecessary for the Court to deal with the issue. Given the quantum of money involved, however, and the submissions put, together with the possibility of an appeal, it is appropriate for the Court to express a view as to the interpretation of the Act on this issue.

15. [191]

    As already stated, the legislation must be construed as a whole, with the aim of ensuring harmonious goals. While most of the provisions in Pt 7, Div 3 are permissive, and provide the Minister with a discretion based upon the Minister’s exercise of that discretion or an evaluative process — albeit with some restrictions — the provisions of s 83C(1) are not in permissive terms.

16. [192]

    The provisions of s 83C(1) of the Act prohibit the Minister from providing “financial assistance (whether under this Division or otherwise) to or for the benefit of a school that operates for profit”. It is unnecessary to determine whether the prohibition in s 83C(1) is mandatory or directory, if that be a relevant classification. The Act, by the provisions of s 83J, provides the consequences of the prohibition, being that, subject to the discretion prescribed by s 83E(3) of the Act, assistance is not to be provided and, if provided, the Minister is empowered to recover the amount of any financial assistance.

17. [193]

    Notwithstanding the general prohibition, s83J(1) of the Act provides to the Minister a discretion, and thus prescribes the basis upon which any flexibility may be effected, and the conditions of that flexibility. As a consequence, the Minister is permitted not to recover “the amount of any financial assistance” provided.

18. [194]

    In that regard, it is important to note the strict limitations on the exercise of the discretion not to provide assistance. The Minister’s discretion is confined to circumstances involving that termination of assistance not being justified because the non-compliance is minor; and, more appropriate action can be taken. [81]

19. [195]

    The discretion not to recover, reposed in the Minister under s 83J of the Act, must, in order to achieve harmonious goals and a harmonious operation of the scheme, involve the same limitations. However, the determination of that which is not “justified” is a broad evaluation based on the scope and purpose of the statutory scheme.

20. [196]

    As is made clear from the foregoing summary of the submissions of the parties, the issue of construction that is most contentious is the meaning of the phrase “the amount of any financial assistance” in the context of the legislation.

21. [197]

    The plaintiff School submits that the word “any” is a word of wide import and ought not to be construed in a manner that limits its meaning. The defendant Minister submits, in essence, that the term “any” must be understood in the context of the phrase prefacing it, being “the amount of”, and its reference to the assistance provided under the Division or otherwise.

22. [198]

    Statutory construction is not simply a matter of providing words with a dictionary definition. There can be little doubt that the term “any” is a word of very wide meaning which, generally, excludes limitation. Ordinarily, it includes all persons of the class, or all items of the class described. The difficulty in this context is there needs to be some attention paid to providing a meaning to all of the words in the provision.

23. [199]

    On the plaintiff’s construction, the words “the amount of” are otiose; they serve no purpose. Further, on the plaintiff’s submission, the term “any financial assistance” means any part of any financial assistance, or “any amount”, rather than “the amount”.

24. [200]

    Financial assistance comes in a number of forms. Recurrent financial assistance, to which these proceedings relate, is paid, as the Court has been informed, on an annual basis. Other financial assistance is paid in various forms. That which is covered by the term “any financial assistance”, particularly when described as “the amount of any financial assistance” means financial assistance of any kind.

25. [201]

    The effect of the submission of the plaintiff is that the phrase “the amount of any financial assistance” should be construed in a manner which allowed each dollar (or perhaps each cent) of financial assistance to be separately considered or recovered. In the context of the provision, it does not seem to the Court as presently constituted that it should be construed in a manner which allowed each dollar of every amount that was paid to be treated separately. Rather, the provision is intended to allow the Minister to recover “each amount of financial assistance”, or all of the different amounts provided.

26. [202]

    If the Court is incorrect in the foregoing construction, the general prohibition, nevertheless, makes the primary or prima facie position to be that no school that, in any particular period, operates on a basis that is for-profit or non-compliant, is entitled to funding. Thus, the discretion of the Minister to determine which part of the financial assistance will be recovered starts from that prima facie position; allowing for the Minister to exercise a discretion not to recover all of the amounts of financial assistance. This position is, in the view the Court has formed, the manner in which the Minister approached the issues, whichever of the constructions is ultimately determined to be correct.

The Exercise of the Minister’s Discretion

1. [203]

   As already stated, the Minister for Education directed that an investigation into the School be undertaken in or about January 2016. On 1 June 2017, the Non-Government Schools Not-For-Profit Advisory Committee (“in these reasons called “the Advisory Committee”) determined that the School and/or its proprietor operated for profit within the meaning of s 21A (as it then was) and s 83C of the Education Act. The impugned operation was for the years 2014 and 2015. The Advisory Committee recommended that the Minister make a “non-compliant” Declaration in respect of the School for those years.

2. [204]

   There was an internal review of the recommendations of the Advisory Committee and, on 13 July 2017, the internal review confirmed the findings.

3. [205]

   There was an administrative appeal taken by the School to NCAT, which confirmed the relevant findings in a decision of 6 September 2019. On 6 February 2020, the decision of the Appeal Panel in the appeal taken by the School against the first instance decision of NCAT upheld the original decision insofar as it confirmed or refused to interfere with the findings of the Advisory Committee relating to the for-profit activities of the School.

4. [206]

   On 28 May 2020, the Minister, by letter, made the Declaration of non-compliance and suspended financial assistance to the School. The letter sought submissions and part of it has been extracted earlier in these reasons. The letter seeks for the School to show cause and, as earlier recited, contains the following passage:

5. [207]

   The plain and ordinary meaning of the invitation provided by the Minister was for the School to have the opportunity to put submissions to the Minister, inter alia, on the amount of any financial assistance that the Minister would recover.

6. [208]

   This letter and/or the invitation extracted above is, in my view, part of the record relating to the Minister’s Decision and would be part of the record, regardless of whether s 69(4) of the Supreme Courts Act applies to the record. The invitation is inconsistent with the proposition that the Minister was operating on the basis that there was no discretion as to the amount of financial assistance to be recovered.

7. [209]

   Submissions were sent by letter to the Minister and were taken into account. Following the School’s initial submissions of 7 June 2020, the Minister, on 7 September 2020, confirmed that the conditions necessary for continued funding had been satisfied and lifted the suspension of financial assistance. [83]

8. [210]

   On 11 November 2020, the Minister sought further submissions. In the course of the letter, relevantly extracted at [29] above, the Minister makes the following comment:

9. [211]

   In response, the School provided supplementary submissions on 27 November 2020.

10. [212]

    The Decision of the Minister, already the subject of reference, was conveyed to the School on 5 March 2021. The letter of 5 March 2021 is extracted in two parts earlier in these reasons. The kernel of the reasons for the Decision that are contained in the letter of 5 March 2021 are extracted at [37] above. The paragraphs of the letter that amount to the Decision are extracted at [165] above.

11. [213]

    As is made clear, the Minister decided to “seek recovery of all the financial assistance” paid to the School in the years in question. If the Minister were of the view that such was the only available course of action, it would have been wholly unnecessary to use the words “of all” in the foregoing passage.

12. [214]

    In other words, if, as a matter of fact, the Minister were operating on the basis that there was a discretion not to seek recovery — but once a determination had been made that recovery would be sought, it was necessary for all of the amount of financial assistance to be the subject of recovery — it was unnecessary for the Minister to express the view that a decision had been made to seek recovery “of all” of the financial assistance. This is consistent with the invitation of the Minister for the School to make submission on the amount the Minister should recover.

13. [215]

    The reasons for the Decision of the Minister expressed the view that the Minister has a discretion not to recover the amount of financial assistance. It also expresses the view that, were that power to recover financial assistance exercised, “the question of the amount to be recovered is less clear”. That description of the clarity of the Act is accurate.

14. [216]

    Moreover, it is also accurate and correct for the Minister to express the view that the exercise of the discretion as to whether to recover — and, if recovery is to be sought, the amount of the recovery — is concerned with the repayment of financial assistance provided in respect of a particular period when the School was non-compliant (or operated for profit). The Minister’s reasons do not operate inconsistently with the Decision taken by the Minister to seek recovery of “all the financial assistance” paid in the two years in question.

15. [217]

    No complaint is made as to the exercise of the discretion by the Minister to recover financial assistance. Rather, it is said there was an error of law, and the Minister should have turned her mind to the exercise of a discretion as to the amount of financial assistance that should be recovered.

16. [218]

    The Minister expresses the view, extracted at [37] above, that the provisions of s 83J of the Act are based on two important principles. First, it is a condition precedent to the receipt of financial assistance that the School not operate on a “for-profit” basis. Secondly, where a school has been found to be operating for-profit, “it is reasonable that the school should repay the public funds it received while the school was in breach of the preconditions”.

17. [219]

    This expression of reasons was in answer to the submissions made by the School, and the Minister expressed the view that she had based her decision on the legislative provisions and “by also carefully considering the School’s submissions on this issue”. The issue to which the Minister was referring was the amount and method of recovery.

18. [220]

    The Minister’s reasons expressed the view that the amount to be recovered, once the discretion was exercised to recover financial assistance, should be based upon the two principles that the Minister expressed.

19. [221]

    In other words, the Minister took the view that, where the discretion had been exercised to recover the financial assistance, the primary or ordinary position was that all of the financial assistance provided, during the period in which the precondition for receiving financial assistance had not been satisfied, should be recovered. However, on the appropriate reading of the letter of 5 March 2021, the Minister came to that decision, by two paths.

20. [222]

    First, the Minister prefers the view that, once the Minister has exercised the discretion to recover financial assistance, the legislation requires all of the financial assistance to be recovered. However, the Minister also turned her mind to the submission of the School that the Minister should exercise a discretion to recover an amount less than all of the financial assistance provided which was, in the submission of the School, the amount of not-for-profit activities that had not been recovered in subsequent years. In relation to that latter aspect, the Minister took the view that, if there were a discretion, it would be exercised for the recovery of all the financial assistance.

Consideration of the Grounds of Review

1. [223]

   Before dealing with the separate grounds of review, it is necessary to reiterate a number of fundamental propositions that govern judicial review.

2. [224]

   First, the Court, on judicial review, is not concerned with “looseness of language” nor “unhappy phrasing”. Nor is the Court in exercising its functions, examining the reasons of the decision-maker in a manner such that they are “construed minutely and finely with an eye keenly attuned to the perception of error”. [84]

3. [225]

   It is also necessary to repeat the principles that underpin and confine judicial review to issues of law rather than issues of “fairness”. The classic comment to that effect is that of Brennan J (as his Honour then was) in Attorney-General (NSW) v Quin, [85] in which his Honour said:

4. [226]

   The judgment of Brennan J commented on courts exercising judicial review being requested to intervene and expand the scope and purpose of that process in order to provide a check on Executive Government. His Honour noted that if the Court embarks upon the determination of “unfairness” in its opinion of the merits of an administrative decision that is to be made or was made, the courts would be assuming the jurisdiction to the very thing which is to be done by the repository of the administrative power, namely, “choosing among the courses of action upon which reasonable minds might differ”. [87]

5. [227]

   The submissions of the parties have been summarised already. Further, the Court, as presently constituted, has already construed the legislation on the issue raised by this ground of review.

6. [228]

   In short, the Court takes the view that the term “the amount of any financial assistance provided” permits the Minister to recover each of the amounts provided by way of financial assistance, under any legislative or regulatory program or grant. Thus, if there be one payment only of recurrent financial assistance, the Minister is permitted to recover that amount.

7. [229]

   A proper construction of the provisions does not permit the Minister, as an extreme example, to recover $1 of an amount of $4 million paid by way of financial assistance, unless that $1 is in a separate category of financial assistance. If financial assistance of $1 million is paid, relating to one category and in one payment, then it cannot be said that any lesser part of that $1 million is “the amount of any financial assistance provided”.

8. [230]

   The construction to which the Court has arrived is a construction that, in part, accepts that there is a discretion as to “the amount” to be recovered, but the discretion is limited to “the amounts” that have been provided. It does not permit the Minister to recover one undefined part of the amount provided.

9. [231]

   Notwithstanding the view that the Court has taken of the proper construction of the Act and the discretion of the Minister, the plaintiff School has not established that the Minister arrived at a definite view of the discretion available as to the sum that may be recovered. The Minister, in her reasons, noted that the existence of such a discretion was not as clear-cut as the existence of the discretion not to recover at all. But it cannot be said that the Minister failed to have regard to the availability of such a discretion and determined the result of the exercise on the basis that the Act provided no discretion as to the amount.

10. [232]

    In those circumstances, this ground fails. Further, the plaintiff School has not established that the financial assistance provided in 2014 and 2015 was in more than one category or consisted of more than one payment. Thirdly, the School has not suggested that the Minister did not consider that the discretion could be exercised differently in relation to the amount received in 2014, from the amount received in 2015. The Minister could have exercised the discretion to recover the amount paid in 2014, but not recover the amount paid in 2015, and vice versa. My conclusion is that this ground has not been established.

11. [233]

    The issues raised before the Court and, ultimately, before the Minister do not include the findings of fact that the School operated for profit in 2014 and in 2015. Much material before the Court, and before the Minister, sought to re-agitate a number of those issues.

12. [234]

    For example, the School continued to submit that, notwithstanding the for-profit activities that were undertaken — because in later years the money expended in those for-profit activities was recovered either in Court or by consent, or both — the Minister should not have regard, in the exercise of the Minister’s discretion, to the activities that resulted in payments that were ultimately recovered. Thus, on the submission of the School it is said there were two aspects that required the Minister’s consideration. First, that there was a discretion as to whether any amount would be recovered; and, secondly, the amount to be recovered.

13. [235]

    In so doing, the School, as is set out earlier in these reasons, argued for the Minister to recover only that amount which had not otherwise been recovered by the School. The Minister dealt with both arguments.

14. [236]

    As recounted in relation to Ground 1, the Minister did not express a final view on the existence of a discretion as to the amount to be recovered. The Minister reached her conclusion on the basis that such a discretion existed, but that the primary or prima facie basis in relation to the recovery of financial assistance provided was that all of the financial assistance should be recovered. There is no error in that legal analysis. Nor is there a failure to engage with the argument as to the existence of the discretion.

15. [237]

    In dealing with this ground and Ground 4, it is important that the Court, on judicial review, be astute to ensure that it does not slip from the exercise of judicial power and judicial review to a discussion on the merits of the issues. The fact, if it were the fact, that the Court might exercise the discretion differently, or might express its reasons differently, is not a basis upon which to hold that the grounds for judicial review have been established.

16. [238]

    As should be clear from the foregoing extracts of the correspondence, the Minister engaged fully with the submission of the School. The Minister, correctly, noted that the “for profit” activity related to a particular period during which financial assistance had been provided. The Act prohibits the provision of financial assistance to a school that operates for-profit or that is non-compliant. The School relied upon the “recovery” of some of the amounts that were said to be “for-profit activities”, but that recovery occurred in later years.

17. [239]

    The Minister not only considered, but took into account, the recovery of the monies. The Minister considered the reforms and change in the Board’s governance. Those reforms and that change in the Board’s governance informed the decision of the Minister, provided on 7 September 2020, to accept that the conditions for the resumption of financial assistance had been satisfied and to lift the suspension of funding that had hitherto applied to the School. [88]

18. [240]

    In my view, there is little or no merit in this argument, and little or no merit in the submission to the Minister. That the recovery should be limited to an amount which is the result of the for-profit activity in the years in question, less amounts later received by the School, is inconsistent with the purpose of the legislature in s 83C(1) of the Act.

19. [241]

    Assume for hypothetical purposes that a school operates and that, say, 80% of its costs are staff. Also, assume the school has 1000 students and receives from government recurrent funding 25% of the recurrent cost of operating the school. The school would receive $5 million from the government in recurrent funding

20. [242]

    Assume also that the cost of operating the school is $20,000 per annum per child. The school would be entitled to charge students (or their parents), $20,000 per annum, and, presumably, would receive $20 million in fees (assuming no bad debts, no bursaries or fee-subsidies and that all students pay full fees), which would result in a surplus of $5 million. I note that the amount of surplus and the amount of government funding is coincidentally equal but that is neither expected nor probable.

21. [243]

    In and of itself, the existence of a surplus does not render the School a “for-profit” entity and, for example, any such surplus may be utilised for the repayment of debt or renovation of school buildings and equipment (i.e. non-recurrent expenditure).

22. [244]

    If the school, instead of utilising the surplus for the operation of the school, distributed the surplus to members of the governing body of the school — otherwise than as a reimbursement for an expense in connection with the operation of the school — the school would become a school that operates “for-profit”. [89]

23. [245]

    The fact, if it were the fact, that the members of the governing body at some later time after the period for which the financial assistance was provided, donated all of those payments back to the school, does not mean that, for the period in which the school operated and distributed its surplus, it is otherwise than a school that operated for-profit.

24. [246]

    The prohibition on providing financial assistance to schools that are operated for-profit, or are otherwise non-compliant, is not dependent upon the amount or extent of the “profit” nor on the amount referable to “for-profit activities”. Thus, in the foregoing hypothetical, the amount that was distributed to directors to render the school one that is operating for profit may have been significantly less than the $5 million surplus. As long as the distribution, or for-profit activity or amount, is not such as to cause the Minister to exercise the discretion not to recover financial assistance, the prohibition on the provision of financial assistance and the for-profit activities bear no relationship.

25. [247]

    Were it otherwise, there would be no disincentive on schools to operate in accordance with the prohibition, i.e. not-for-profit. If all that is to be recovered is the amount of “profit”, then schools utilising income for purposes other than the operation of the School would know that their only potential loss is the monies so used.

26. [248]

    The prohibition on the provision of financial assistance to schools that run for-profit or are non-compliant is absolute. While the Minister has a discretion not to recover monies paid to such schools, that is a discretion to ameliorate the effects of the absolute prohibition in appropriate circumstances. There is no basis for a complaint that the amount left unrecovered after some years ought not be accepted as the amount that the Minister utilised in recovering financial assistance.

27. [249]

    During the course of the correspondence between the Minister and the School, the Minister took issue with some of the submissions as seeking to cavil with the Advisory Committee’s findings. The “mischaracterisation”, as described by the School in this Court, was addressed by the School in its subsequent submissions and was not again the subject of reference by the Minister. I do not consider that the mischaracterisation, if it be one, was in any way determinative. It was not a reason of the Minister for her “ultimate determination”. [90]

28. [250]

    Otherwise, the School’s submission on this ground deals with its “recovery” of amounts, otherwise classified during the years 2014 and 2015, as “for-profit” activities and included in the quantum. The for-profit characterisation and assessment of quantum is valid for the period 2014 and 2015.

29. [251]

    The School submits that the reforms and change in the Board’s governance was not taken into account and, as a consequence, mischaracterises the liability as being on the School as currently constituted. The difficulty with that proposition is that the School is a corporate entity and is required to be a corporate entity in order to receive funding. [91] The fact, and it is the fact, that previous directors were responsible for the for-profit activities does not relieve the School of the liability for its corporate conduct. Ground 2 must also fail.

30. [252]

    As already stated, the School submits that the Minister admits that certain matters are relevant that were raised by the School but submits that the Minister failed to take them into account. Obviously, if considerations are mandatory, they are relevant. The converse is not accurate.

31. [253]

    The term “relevant” in the context of judicial review may be used in two different ways. First, it is a requirement of legal efficaciousness of a decision that the decision maker take into account all relevant considerations. A failure to take into account a relevant consideration, in that context, amounts to jurisdictional error. However, in that context, a “relevant consideration” is a consideration that is required to be taken into account, otherwise referred to as a “mandatory consideration”. [92]

32. [254]

    A consideration may be “relevant” in that it is not extraneous to the formation of opinion that informs the exercise of the discretion (i.e. it is not irrelevant), but is not required to be taken into account. In those circumstances, a failure to take into account a probative consideration, which is not mandatory, is neither an error of law nor jurisdictional error.

33. [255]

    The School submits that a proper construction of s 83J of the Act requires the Minister to take into account: the nature, context and severity of “for-profit” activity; the extent of any for-profit or non-compliant activity; any remedial action taken by the School; the extent to which financial assistance previously used for for-profit or non-compliant activity has been recovered by the School; and, the identity of those responsible for the School’s for-profit or non-compliant activity and their current role (if any) in the governance of the school.

34. [256]

    As stated, the Minister admits that these matters are relevant, in the sense that they are not irrelevant. The Minister maintains that these matters were considered before reaching the decision.

35. [257]

    No discretion is “unfettered”. A legislative direction to decide does not, unless express words were utilised for that purpose, involve a discretion to give effect to what the decision-maker considers desirable. Such a discretion would be implied only if the context necessitated it and where the context provided no positive indication of the considerations informing the discretion. Ordinarily, every discretion must have regard to and be limited by the scope and purposes of the legislation. [93]

36. [258]

    Accepting, as I do, that at least some of the correspondence from the Minister may be utilised as part of the record — at least in so far as it conveys the decision taken and the reasons for that decision — it is clear from the correspondence that the Minister had cognizance of, and took into account, the activity that was said to be for-profit; the extent of that activity; the remedial action taken by the School; the extent of recovery in later years; and, the change in the persons responsible for the governance of the School from those that engaged in the for-profit or non-compliant activity. It is, as a matter of fact, not the case that the Minister did not consider these aspects.

37. [259]

    As a matter of law, nothing in s 83J of the Act or Part 7, Division 3 renders the foregoing criteria mandatory considerations that, were the Minister not to have taken them into account, would amount to jurisdictional error or, for that matter, error of law on any question associated with the amount of any financial assistance to be recovered.

38. [260]

    The School presented a clearly articulated argument seeking to have the Minister recover only that amount that was the result of for-profit activity and which had not subsequently been recovered. In terms of judicial review, the arguments put were “clearly articulated” and relied upon established facts.

39. [261]

    However, the Minister responded to that argument and, in so doing, did not constructively fail to exercise the jurisdiction conferred upon her. I am not persuaded that the Minister misunderstood the School’s case, or failed to address it. [94]

40. [262]

    In this ground of judicial review, the Court needs to be vigilant in ensuring that the separation between the function of the Court and the administrative decision maker does not elide. In this area, the comments of Brennan J (as the Chief Justice then was), in Quin, supra, must be heeded.

41. [263]

    The requirement that an administrative decision must be a reasonable exercise of the discretion conferred is, surprisingly to some, of long standing. It underpins the doctrines established in Wednesbury [95] unreasonableness, and was the subject of comment by Mason J (as the Chief Justice then was) in Peko-Wallsend, supra.

42. [264]

    As part of a classic passage on judicial review and referring to “unreasonableness”, Mason J said:

43. [265]

    The foregoing approach was accepted and applied by the High Court in Eshetu, [97] in which Gummow J described the principle in the following terms:

44. [266]

    The foregoing approach was confirmed by the High Court in Li. [99] During the course of the plurality judgment, the Court made clear that the duty to act reasonably, and the standard of reasonableness, had been required by the law long before the judgment in Wednesbury, and referred to a number of judgments of the High Court adopting the approach.

45. [267]

    After referring to the judgment of Mason J in Peko-Wallsend, supra, the plurality referred to the diversity in the application of the test of “manifest unreasonableness” and reiterated that the approach taken in such cases was similar to the approach taken by the High Court in dealing with appeals from discretionary judgments more generally. The plurality said:

46. [268]

    The issue was addressed in the reasons for judgment of Gageler J in Li, in which his Honour said:

47. [269]

    His Honour, Gageler J, continued and expressed the view that there would be, inevitably, legitimate disagreement in the judicial application of the standard of unreasonableness as there is in the application of any other judicial standard. It is constrained, on the view expressed by Gageler J, to two principal considerations:

48. [270]

    The foregoing is recited because it refers back to the admonition of Brennan J in Quin. While judicial officers might, or some of them may, have exercised a discretion differently from the administrative decision-maker or even consider the decision made “unfair”, it is not the unfairness, per se, that excites the capacity of the Court to intervene on judicial review.

49. [271]

    At its heart, the disproportionality and unreasonableness of which the School complains is the unreasonableness of the legislation. There is an absolute bar on the provision of funding to a school that has engaged in “for-profit” activities. A legislative purpose has been established that a school that operates for-profit or is otherwise non-compliant is not to receive financial assistance. The absolute nature of that prohibition is sought to be ameliorated by the legislature providing the Minister with a discretion not to recover the amount of any particular financial assistance, or not to cease funding in limited, previously articulated, circumstances. [103]

50. [272]

    The “unreasonableness” must be weighed in the circumstances that, were the Minister to have been aware of the for-profit activities prior to the financial assistance being provided, there would be no discretion reposed in the Minister to provide lesser amounts of financial assistance. Thus, the School was not entitled to receive the financial assistance at the time it received it.

51. [273]

    The “for-profit” activity, and the basis upon which a school is “non-compliant”, must be deliberate and voluntary in order for the school to be so classified. Thus, for example, a Director who fraudulently misappropriates the funding of the school may be guilty of a criminal act, but the school is not, as a consequence, engaged in a “for-profit “activity.

52. [274]

    Consequently, the absolute prohibition to the funding of a school that operates for-profit or is otherwise non-compliant applies to a school that engages in activities of that kind voluntarily; deliberately; and, in circumstances where there are guidelines published by the Minister, and/or one or other of the Committees under the Act, relating to the function of schools and the means by which the school ensures it is not operating for profit or is otherwise non-compliant with the requirements for funding.

53. [275]

    The exercise of the discretion by the Minister was not, upon the facts before her, “unreasonable” or “plainly unjust”. [104] Nor did the Minister fail to give adequate weight to any relevant consideration and, if there were such a failure, it did not amount to a failure to exercise the discretion actually entrusted to the Minister. [105]

54. [276]

    Essentially, the School argues that it is unreasonable for the School to be denied all of the financial assistance in circumstances where, were the Minister aware of the for-profit activities prior to the financial assistance being provided, it would not have received that financial assistance. Thus, this School seeks, by virtue of its non-disclosure of its for-profit activities and its representation that it acted “not-for-profit”, to be in a better position as a result of concealing those aspects than it would have been, were it to have disclosed the activities and disclosed that it was operating for-profit (or not represented that it was not operating for-profit). Every other school that operated for-profit in those years would not have received financial assistance, subject to the Minister’s discretion under s 83C(4) of the Act.

55. [277]

    The Minister’s decision and exercise of discretion were reasonably open. In my view, the Minister’s exercise of discretion cannot be categorised as legally unreasonable or manifestly unjust, nor even “legally unfair”, if there be such a concept. This ground also must fail.

56. [278]

    The Act permits the Minister to recover the amount of financial assistance that is determined by the Minister to warrant recovery as a debt in a court of competent jurisdiction. [106]

57. [279]

    As summarised above, the School submits that the provisions of the Limitation Act bar any recovery. The submission, properly understood, is that the limitation applies not only to any action in a court of competent jurisdiction, but also to recovery of the debt by other means, including, as is the situation currently, by reduction of future financial assistance for the purpose of recovering the debt.

58. [280]

    The submission that the Limitation Act applies to proceedings in a court of competent jurisdiction and recovery of the debt by other means is correct.

59. [281]

    Financial assistance that may be recovered under s 83J of the Act is, within the term used in s 14(1)(d) the Limitation Act, “money recoverable by virtue of an enactment”. As a consequence, pursuant to the terms of s 14 of the Limitation Act, an action for a cause of action based on money recoverable by virtue of an enactment is not maintainable after the expiration period of six years.

60. [282]

    Further, by operation of s 63(1) of the Limitation Act, at the expiration of the limitation period, being the expiration of six years, the right and title of the person that would otherwise have had the cause of action is extinguished. The School submits that the combination of the operation of s 14(1)(d) and s 63(1) of the Limitation Act has the effect that the Minister is not entitled to recover the financial assistance, in the case of financial assistance provided in 2014, after 2020 and, in the case of financial assistance provided in 2015, after 2021.

61. [283]

    It is not clear when in 2015 the financial assistance was provided, but it is unnecessary to explore, or determine, this date further. The Minister’s determination to recover the amount of financial assistance occurred in March 2021.

62. [284]

    It is further unnecessary to explore whether the provisions of s 55 of the Limitation Act operate in a manner that would extend the limitation period otherwise fixed.

63. [285]

    The limitation period operating on a cause of action to recover money recoverable by virtue of enactment — which is any cause of action to recover financial assistance pursuant to Part 7 of Division 3 of the Act — is six years “from the date on which the cause of action first accrued to the plaintiff”. [107] Even though the Minister, in reducing future financial assistance, is not instituting an action, the limitation period operates, by virtue of s 63, to extinguish the debt that is sought to be recovered. Therefore, any action, including a reduction in future financial assistance, intended to recover the debt, would be unfounded because, if the limitation period had expired, the debt would have been extinguished.

64. [286]

    The issue that arises, as a consequence, is when did the cause of action accrue. The Minister submits that the cause of action does not accrue until the Minister exercises her discretion and decides to recover the amount in question (and possibly decides the amount to be recovered).

65. [287]

    Further, the Minister submits that recovery of the financial assistance, paid contrary to the provisions of s 83C(1) of the Act, is dependent upon the issuing of a Declaration that the School is “non-compliant” or operating “for-profit”.

66. [288]

    During the earlier part of these reasons, I have already noted that, as I read the Act, the issuing of a Declaration is not a condition precedent to the decision under s 83J to recover financial assistance provided, nor in the determination of the amount of any financial assistance to be recovered.

67. [289]

    The provisions of s 83D(6) and s 83F(6) of the Act make clear that the lack of a Declaration does not deprive the Minister of the capacity to take action otherwise, as a result of the School’s non-compliance or the circumstance that it operates for-profit.

68. [290]

    Further, the Minister’s determination to recover the amount of financial assistance for the period when a school was operating for-profit, or was otherwise non-compliant, is the equivalent of the determination of any party to recover a debt. It would be inconsistent with the purpose and aims of the Limitation Act for the Court to treat the decision to recover as the completion of the cause of action. The cause of action must be complete, and the debt must be owed, before the Minister exercises the discretion to recover.

69. [291]

    On the other hand, there is, in the current circumstances, a clear and express condition precedent to the recovery of the financial assistance provided in any relevant period. The precondition imposed by the legislature in the Act is that there must be, once the Minister undertakes an investigation, a recommendation of the Advisory Committee to the effect that a school is operating for-profit or is otherwise non-compliant. [108] Further, the exercise of the discretion not to cease funding or not to recover requires an investigation by the Advisory Committee. [109]

70. [292]

    The provisions of section 83J do not, on their face, require a recommendation of the Advisory Committee before recovery of the amount of financial assistance occurs. However, the requirements on the Minister to seek, and have regard to, advice from the Advisory Committee, and not to make relevant declarations without advice from the Advisory Committee — together with the express provisions requiring a school to be given notice of the recommendations of the Advisory Committee — make clear that the Minister is required to have advice from the Advisory Committee before recovering financial assistance provided in a relevant period.

71. [293]

    Interestingly, the provisions of ss 83E, and 83F(6) stand in contrast to the provisions of s 83J of the Act, in that they expressly permit the Minister to “suspend, reduce or impose conditions on the provision of financial assistance”, notwithstanding the absence of a recommendation from the Advisory Committee. Section 83F(4) further provides that a Declaration of non-compliance is “conclusive evidence” that the school is, or for the relevant period has been, non-compliant.

72. [294]

    Construing these provisions in their entirety — and in a manner which achieves the purpose of the legislation as derived from the terms of the statute and achieving harmonious goals — requires an understanding that the Minister could not recover the debt without an investigation (even if limited); there having been a finding by the Advisory Committee that the School was operating for-profit or was otherwise non-compliant; and, giving the School notice of that finding and providing the prescribed time to allow for an appeal to NCAT.

73. [295]

    In other words, while the cause of action is complete prior to the Minister issuing a Declaration, it is not complete until a recommendation for such a Declaration, or advice from the Advisory Committee — which would include a finding as to the operation of the School in such a way that it was for-profit or non-compliant — had been provided to the Minister.

74. [296]

    In the current circumstances, as was required, the Minister undertook an investigation. This required consultation with and advice from the Advisory Committee. [110]

75. [297]

    On 1 June 2017, the Advisory Committee determined that the School operated for profit and recommended that the Minister make a “non-compliance” Declaration. As the recommendation or advice from the Advisory Committee was necessary before the Minister could recover the debt, the cause of action was not complete until such time as the recommendation and/or advice was provided. As such, the cause of action was complete on 1 June 2017 and the six-year limitation period concludes — in relation to financial assistance received in each of 2014 and 2015 — six years from the date on which the cause of action accrued, which will not be before 2023.

76. [298]

    The Limitation Act applies to the recovery of the debt because it extinguishes the debt at the conclusion of six years from the date on which a cause of action for the recovery of the debt accrued. The cause of action for recovery of the debt cannot accrue until the Advisory Committee determines the necessary questions and advises as to, and/or recommends to, the Minister the action to be taken. The limitation of six years applying to recovery of the debt under s 83J of the Act has not expired, and this ground of review fails.

Conclusion

1. [299]

   For the reasons expressed, I have determined that each of the grounds of review fail. Although the Court has not considered whether the amount sought to be recovered comprises only one amount of financial assistance, or a number of amounts in each year, the finding of the Court does not depend upon the absence of that evidence.

2. [300]

   The Court makes the following orders:

   1. (1)

      Judgment for the defendant;

   2. (2)

      Summons and proceedings dismissed;

   3. (3)

      The plaintiff shall pay the defendant’s costs of and incidental to the proceedings.