While a legal case against the proposed reforms has been the topic of various discussions and scuttlebutt, it now appears it is on the table and momentum is gathering.
In a letter seen by the Koala and which is circulating amongst sector members, Nick Galatas of Galatas Advisory says “I have briefed our King’s Counsel and Barrister to prepare the legal case to challenge the Caps legislation if it is passed by Parliament. I will be working with them and on the case over the weekend and next week.”
The letter also indicates that Galatas is preparing a joint submission for the newly re-opened senate committee hearing. “I have also commenced preparation of a joint provider submission to the Senate Inquiry by Friday, 20 September 2024. A legally substantiated submission supported by all providers as a collective action will be very powerful. This can be further supported by submissions from individual providers.” He says.
The letter has 10 points to it, and point 6 outlines the legal basis for the case: “The legal case will be based on the injustice of the caps legislation as exposed by these effects. It will be aimed at preventing the legislation from coming into force and putting the government on notice that it will be challenged and that compensation claims will be brought if it is enacted in its present form. The inherent and internal contradiction within the ESOS Act, and the related TEQSA and NVR Acts, resulting from the caps amendments will be exposed and we’ll show how providers are placed in an impossible position.”
The Koala spoke exclusively to Nick Galatas who says “it is apparent from the proposed introduction of caps that the designers of these amendments have little or no concept of the businesses they will destroy among Higher Education Providers (HEPs) and Registered Training Organisations (RTOs) and how those training and education providers operate and are required to operate by legislation and regulation.”
“CRICOS providers have a condition on their registration giving them a maximum capacity. The cap reduces that without regard to the provider’s legal obligations to maintain compliance with statutory and regulatory obligations. The changes will force many providers to default on their obligations or not sustain standards the regulators have been otherwise often overzealous to enforce. Providers are required by law (by both these Acts and the Corporations Act and ASIC) to be financially viable and be able to pay their expenses and now face catastrophic legislated cuts to their income and their ability to aspire to do their best. The value of their businesses has been slashed to nothing overnight.”
“Providers understand the government has to govern for all Australians. They recognise the government makes law. But they seek to be properly heard because it’s clear to them the government has relegated them to the bottom of the pile of considerations. This industry is a huge export sector. These providers have contributed massively to its establishment for the benefit of all Australians. They will the government on notice of the fundamental flaws of this legislation now so the government can change it or not complain when the case is brought if the legislation is passed in this fundamentally flawed form,” he said.
Time will tell whether the sector gets behind this legal case. The Koala will be following.
