By Mary Lyn Fonua
Tonga’s National Qualifications and Accreditation Board (TNQAB) exceeded its authority when it imposed a recruitment ban on 'Atenisi, while ‘Atenisi had an application for accreditation pending, the Supreme Court found this week.
In a 74 page Civil judgment, Lord Chief Justice Whitten noted the “irrationality and unreasonableness” of the Defendant in issuing the compliance notices to 'Atenisi.
In a long running civil case the Plaintiff, 'Atenisi Institute Inc., challenged the compliance notices issued by the Defendant, TNQAB.
On October 15 the Lord Chief Justice declared that the TNQAB’s compliance notices dated 22 February 2018 and 21 February 2019 were unlawful, invalid and of no effect; and ordered that they be set aside.
He said the imposition of a recruitment ban, if valid, was likely to be highly detrimental to the academic and financial operation of any education provider.
“It could threaten that provider’s very future existence. Therefore, the Defendant here was required to undertake a fair decision-making process before deciding to issue the compliance notices. In my view, it failed to do so.”
The TNQAB had failed to give "proper, genuine and realistic consideration" to the merits of the issue.
However, the Chief Justice also made it clear that 'Atenisi is subject to the Tonga National Qualifications and Accreditation Board Act.
He dismissed the Plaintiff’s claims for declarations that it is not subject to the Act, and for damages.
The Chief Justice said the proceeding raised important issues concerning the interpretation and application of the National Qualifications and Accreditation Board Act 2004, which introduced a system for the registration of providers of Post Compulsory Education Training. The Defendant (TNQAB) is a statutory body established under section 3 of the Act.
He also stated that, “The Act does not prohibit a provider from delivering unaccredited courses, nor provide any other sanction for doing so. At the time of issue, the Plaintiff had applied for accreditation. It had therefore complied with the relevant requirement of s.10.”
Liberal arts academy
‘Atenisi has operated since 1975 as an educational provider offering tertiary courses in social science, natural science and the creative arts. Its core curriculum has been the critical appraisal of philosophy, history, literature, coupled with instruction in mathematics and language. Dr Michael Horowitz, the current Dean, represented the Plaintiff, following earlier representations by John Appleby.
While the Plaintiff raised a number of other complaints against the Defendant during the course of the proceeding and further during the trial, the Chief Justice said there were reasons why many of those complaints did not arise for determination in this proceeding.
“Dr Horowitz described the last ten years or so of dealings between the Plaintiff and the Defendant (the Ministry of Education and the Government generally) as a ‘decade of malice’ towards the Plaintiff. He asserted that the Plaintiff had been ‘bullied’ and ‘coerced’ into giving up its status as a university following the settlement of the 2010 proceedings, and that the Plaintiff had been ‘pressured’ into not applying for university status since.
“In my view these issues do not fairly arise for determination in the proceeding,” stated the Chief Justice.
Lord Chief Justice Whitten found the issues to be determined were:
- Is the Plaintiff exempt from the Act?
- Are the Compliance Notices lawful?
He decided, “In my view, the correct interpretation of the Act on the question of its scope, in particular, the obligation to apply for registration and accreditation, is that it applies to all providers of post compulsory education and training operating within the Kingdom, regardless of whether they are first time applicants or previously accredited applicants seeking renewal. The Plaintiff is such a provider. The Act applies to it. ”
The Plaintiff filed affidavits from 12 witnesses. It also called evidence from another six witnesses, including ‘Iliaisaane Sisi‘uno Helu, Chair of the Plaintiff's Board of Directors.
The Defendant represented by counsel Sifa Tu‘utafaiva, relied solely on the evidence of Mrs Pauline Moa, the Acting CEO of TNQAB since 2013. Mrs Moa conceded that the Defendant had not afforded the Plaintiff any opportunity to be heard before she decided to issue the notices.
“There were relatively few conflicts in the evidence on relevant issues,” stated the judgment. “The evidence traversed dealings between the parties spanning back some ten years.
“A good deal of the Plaintiff’s evidence at trial was devoted to demonstrating that it had provided all required documentation for its accreditation application including the ‘voluminous’ appendices 1a and 2b.”
Lord Chief Justice Whitten said regarding the fate of the accreditation application, there was no decision by the Defendant yet which might be amenable to judicial review.
Defendant exceeded authority
On the issue of “Are the Compliance Notices lawful?” the judgment found that the Defendant had not only exceed its authority but also failed to correctly apply its own policy.
“While the Act here enables the Defendant to make policies...The Defendant's policies cannot create or confer on itself any power, which is not provided for by the Act. To the extent that they conflict with implied or express limitations in the Act or contravene fundamental rights such as natural justice or procedural fairness, such policies will be invalid,” the Chief Justice said.
“A decision maker must understand correctly the law that regulates his decision-making power and must give effect to it... the Defendant’s Quality Assurance Policy purports to empower the Defendant to issue compliance notices which contain sanctions...it is, in my view, the product of an incorrect understanding of the law regulating the Defendant’s powers and duties. It exceeds the Defendant’s authority as provided by the Act...”
“The Defendant did not have power to impose the recruitment bans. Those conditions were ultra vires.”
Breach of natural justice and procedural fairness
Lord Chief Justice Whitten said it was a breach of natural justice and procedural fairness
“It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard.”
He said the Defendant had made an error in “allowing its policy to dictate the manner of exercise of a discretionary power (if it validly possessed such power), thereby failing to give “proper, genuine and realistic consideration" to the merits of the issue and be ready in a proper case to depart from the policy”
Secondly, it did not inform the Plaintiff as to what the ‘action plan’ was to address, or, for instance, in what way its accreditation application was deficient.
“It was impossible therefore for the Plaintiff to know, other than it was ‘delivering unaccredited programmes’, the particulars of the alleged non-compliance and what was required to remedy it.”
The Plaintiff was not provided any opportunity to be heard before the purported condition was imposed.
“For those reasons, the Defendant failed to observe the requirements of natural justice or procedural fairness.”
Lord Chief Justice Whitten recommended that each party bear its own costs. However, he allowed the parties seven days for applications on orders for costs.