Access Training Institute Pty Ltd and Australian Skills Quality Authority; Kirana Training Pty Ltd and Australian Skills Quality Authority
[2020] AATA 2470
•24 July 2020
Access Training Institute Pty Ltd and Australian Skills Quality Authority; Kirana Training Pty Ltd and Australian Skills Quality Authority [2020] AATA 2470 (24 July 2020)
Division:GENERAL DIVISION
File Number(s): 2018/3222; 2019/2046
2018/3223
Re:Access Training Institute Pty Ltd
Kirana Training Pty Ltd
APPLICANT
AndAustralian Skills Quality Authority
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:24 July 2020
Place:Sydney
In relation to each of the Applicants, the following findings and decisions are made:
Access Training Institute Pty Ltd – 2018/3222
Finding: Access is found to be non-compliant with clauses 1.8, 1.9, 1.11, 2.1 and 3.1 of the Standards.
Decision: The decision under review to cancel the Applicant’s NVR Act registration pursuant to section 39 of the Act is affirmed.
Access Training Institute Pty Ltd – 2018/2046
Finding: Access is found to be non-compliant with clauses 1.8, 1.9, 1.11, 2.1 and 3.1 of the Standards.
Decision: The decision under review to reject the Applicant’s application for renewal of its NVR Act registration pursuant to section 17 of the Act is affirmed.
Kirana Training Pty Ltd – 2018/3223
Finding: Kirana is found non-compliant with clauses 1.8, 1.9, 1.10, 1.11, 2.1 and 3.1 of the Standards.
Decision:
(a)The decision under review to cancel the Applicant’s NVR Act registration pursuant to section 39 of the Act is set aside, and
(b)In substitution the Applicant’s registration is reinstated subject to conditions made pursuant to section 29(1) of the NVR Act that the Applicant:
(i)does not enroll any new students (including re-enrolling former students who request gap assessment), and
(ii)does not apply to add any additional courses to its scope of registration until the end of its current period of registration.
..............................[sgd]..............................
Chris Puplick AM, Senior Member
CATCHWORDS
VOCATIONAL EDUCATION AND TRAINING – registered training organisations – cancellation of registrations as NVR Act registered training organisations – non-compliance with regulatory standards – sufficiency of educational and support services – defining ‘sufficient’ – determining support needs of individual learners – implementing compliant assessment system – Principles of Assessment – Rules of Evidence – ongoing systematic validation of assessment practices – complying with standards at all times – issuing certification to learner whom has met requirements of the training product – remedial action – sanctions – conditions on registration – decision under review affirmed (2018/3222: Access) – decision under review set aside and substituted (2018/3223: Kirana)
VOCATIONAL EDUCATION AND TRAINING – refusal of application to renew registration as a NVR Act registered training organisations – non-compliance with regulatory standards – sufficiency of educational and support services – defining ‘sufficient’ – determining support needs of individual learners – implementing compliant assessment system – Principles of Assessment – Rules of Evidence – ongoing systematic validation of assessment practices – complying with standards at all times – issuing certification to learner whom has met requirements of the training product – remedial action –– decision under review affirmed (2019/2046: Access)
LEGISLATION
Acts Interpretation Act 1901 (Cth) s 15AA
Administrative Appeals Tribunal Act 1975 (Cth) ss 33, 38AA, 41
Evidence Act 1995 (Cth) s 55
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 22
National Vocational Education and Training Regulator Act 2011 (Cth) ss 2A, 22, 26, 31, 35, 35A, 36, 37, 56, 155, 157, 185, 199, pt 2, pt 6
National Vocational Education and Training Regulator Amendment Act 2020 (Cth) sch 1
National Vocational Education and Training Regulator Regulations 2011 (Cth) reg 15
Standards for Registered Training Organisations 2015 (Cth) cls 1.3, 1.7, 1.8, 1.9, 1.10, 1.11, 2.1, 2.2, 3.1, pt 1, Glossary
Tribunals Amalgamation Act 2015 (Cth) sch 1
CASES
Academy of Global Business Training Pty Ltd and Australian Skills Quality Authority [2019] AATA 1345
AFY18 v Minister for Home Affairs [2018] FCA 1566
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41
Australian Institute of Technical Training Pty Ltd and Minister for Education and Training [2018] AATA 1281
Australian International College Pty Ltd v Australian Skills Quality Authority [2018] FCA 2097
Australian Skills Quality Authority v Brighton Pacific Pty Ltd [2020] FCA 617
Australian Tertiary Academy Pty Ltd and Australian Skills Quality Authority [2018] AATA 4875
Brighton Pacific Pty Ltd and Australian Skills Quality Authority [2019] AATA 3645
Construction Industry Training Australia Pty Ltd and Australian Skills Quality Authority [2019] AATA 2219
Echelon National Security Agency Pty Ltd and Australian Skills Quality Authority [2014] AATA 151
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16
Hana Group Pty Ltd and Australian Skills Quality Authority [2019] AATA 4146
Hutchinson v Comcare [2019] FCA 1440
Institute of Training Pty Ltd and Australian Skills Quality Authority [2018] AATA 4127
Ivy Education Group Pty Ltd and Australian Skills Quality Authority [2013] AATA 138
Metro College of Technology Pty Ltd and Australian Skills Quality Authority (unreported)
Re Griffiths and Grif-Air Helicopters Pty Ltd and Civil Aviation Authority (1993) 31 ALD 380
Sand Goanna Institute Pty Ltd and Australian Skills Quality Authority [2020] AATA 769
Secretary, Department of Employment, Education, Training and Youth Affairs v Mackay (1998) 58 ALD 130
Secretary, Department of Social Services v Hodgson (1992) 27 ALD 309
Sher-E-Punjab Pty Ltd and Australian Skills Quality Authority [2018] AATA 46
Shi v Migration Agents Registration Authority [2008] HCA 31
Success Fast-Track Pty Ltd and Australian Skills Quality Authority [2012] AATA 531
Trades College Australia Pty Ltd and Australian Skills Quality Authority [2018] AATA 1360
Trades College Australia Pty Ltd and Australian Skills Quality Authority [2018] AATA 1703
Trades College Australia Pty Ltd and Australian Skills Quality Authority [2020] AATA 812
SECONDARY MATERIALS
Administrative Appeals Tribunal, Practice Direction: Lodgement of Documents under Sections 37 and 38AA of the AAT Act (30 June 2015) < align="left">Australian Government, Organisation details: 52247 - Collaboration Learning Pty Ltd, training.gov.au < align="left">Australian Government, Organisation details: 91498 - Access Training Institute Pty Ltd, training.gov.au < align="left">Australian Skills Quality Authority, Clauses 1.8 to 1.12—Conduct effective assessment < align="left">Australian Skills Quality Authority, Fact Sheet – addressing non-compliances following an audit (May 2017) < align="left">Australian Skills Quality Authority, Fact Sheet – Providing quality training and assessment services to students with disabilities (12 May 2016) < align="left">Braithwaite, Valerie, All eyes on quality: Review of the National Vocational Education and Training Regulator Act 2011 report (Canberra: Australian Government, 2018)
Explanatory Memorandum, Tribunals Amalgamation Bill 2014 (Cth)
Carroll, Lewis, Through the Looking-Glass (Macmillan & Co., 1872)
Healey, Judith, Improving health care safety and quality: Reluctant regulators (Ashgate, 2011)
Jacobellis v Ohio, 378 US 184 (1964)
Joyce, Steven, Strengthening skills: Expert review of Australia's vocational education and training system (Canberra: Department of the Prime Minister and Cabinet, 2019)
Macquarie Dictionary (online at 24 July 2020)
Oxford English Dictionary (online at 24 July 2020)
Pearce, Dennis, Administrative Appeals Tribunal (LexisNexis Butterworths, 4th ed, 2015)
REASONS FOR DECISION
Chris Puplick AM, Senior Member
24 July 2020
THE PROCEEDINGS
The Applicants Access Training Institute Pty Ltd (Access) and Kirana Training Pty Ltd (now known as Collaboration Learning Pty Ltd) (Kirana) are registered training organisations (RTOs).[1] On 1 June 2018 the national regulator of the vocational education and training sector, the Australian Skills Quality Authority (ASQA),[2] notified the Applicants of its decisions to cancel their registrations as RTOs under the National Vocational Education and Training Regulator Act 2011 (Cth) (NVR Act) from 5 July 2018 (cancellation decisions). On 13 June 2018 the Applicants sought review of those cancellation decisions by the Administrative Appeals Tribunal (AAT).
[1] Access Training Institute Pty Ltd (Access) was registered as a company on 30 June 2008. Kirana Training Pty Ltd (Kirana) was registered as a company on 18 December 2009 and traded as such until 15 October 2018 when it changed its name to Collaboration Learning Pty Ltd.
[2] National Vocational Education and Training Regulator Act 2011 (Cth) (NVR Act) s 155; National Vocational Education and Training Regulator Regulations 2011 (Cth) reg 15.
On 12 April 2019 the Respondent notified Access that its application for renewal of its registration as an RTO under the NVR Act was rejected (renewal rejection decision) and on 15 April 2019 Access also applied for a review of that decision. The Tribunal directed on 18 April 2019 that the review of the renewal rejection decision (2019/2046) be heard together with the reviews of the cancellation decisions for Access (2018/3222) and Kirana (2018/3223), and that evidence in one application be evidence in all applications.
Decisions made by ASQA in this regard are reviewable by the AAT.[3]
[3] NVR Act s 199.
After considerable delay, occasioned by adjournments requested by both parties at various times, the hearing in these matters commenced on 10 December 2019. Part way through the resumed hearing on 11 December 2019, the Applicants raised certain objections which resulted in an adjournment of the hearing until 2020. Again, considerable delays were encountered to accommodate all parties and the hearing resumed on 6 May 2020 for three days. Leave was then granted for both parties to prepare written closing submissions which were the subject of oral submissions on 12 May 2020.
Due to the restrictions imposed as a result of the COVID-19 pandemic to ensure the personal safety of all parties the resumed hearing in 2020 was conducted through video conferencing. Although, from time to time, there were difficulties with the technology, the Tribunal is satisfied that all parties were afforded procedural fairness through this mode of hearing.
THE APPLICANTS: BACKGROUND
Access was registered as an RTO in 2009 and was the parent company until 2016, and also a constituent, of a group of six RTOs including Kirana.[4] Kirana Education Group Pty Ltd (Kirana Education Group) then became the parent company of the six RTOs.[5]
[4] Maxis Solutions Pty Ltd, Precision Training Pty Ltd, Insight Training Group Pty Ltd, Learning Lab Pty Ltd, Kirana Training Pty Ltd, Access Training Institute Pty Ltd: Australian Skills Quality Authority (ASQA) Audit Report: Access Training Institute Pty Ltd dated 11 December 2017 and updated 9 May 2018 (Access Audit Report) at 3; ASQA Audit Report: Kirana Training Pty Ltd dated 23 October 2017 and updated 11 May 2018 (Kirana Audit Report) at 3.
[5] Statement of Zeeshan Rana dated 27 June 2018 (ZR June 2018 statement) at [18] and [20]; Statement of Zeeshan Rana dated 5 July 2018 (ZR July 2018 statement) at [14] and [16].
Kirana was first registered as an RTO on 23 April 2010 by the Training Accreditation Council Western Australia and this registration was transferred to ASQA on 1 July 2011. Kirana changed its company and business names to Collaboration Learning Pty Ltd on 15 October 2018.
The Kirana Education Group operates across the nation and, at the time of the audits conducted in October 2017, had some 70 permanent staff (reduced from 110) who worked across all the RTOs within the Group.[6]
[6] Access Audit Report at 3; Kirana Audit Report at 3.
At the time of the audits by ASQA, Access had 1027 students while Kirana had 920. The Tribunal was advised that as of 12 May 2020 Access no longer had any students or staff while Kirana had approximately 800 students and approximately 15 to 20 employees.[7]
[7] Email from Mr Rowan Vickers (Applicant’s legal representative) to the Tribunal dated 12 May 2020.
The attention of the Tribunal was drawn to numerous awards made between 2014 and 2017 to Kirana in NSW and the ACT,[8] and to Access in NSW, ACT and Queensland,[9] bespeaking of the excellence of their programmes, trainers and students.
[8] ZR June 2018 statement at [11]-[17],
[9] ZR July 2018 statement at [11]-[13].
Current registration status
Since its initial registration on 21 April 2009 Access has had two five-year renewals of its registration.[10] ASQA then made its renewal rejection decision on 12 April 2019 and consequently Access’ registration period expired on 21 April 2019. Access had sought review of the renewal rejection decision and that decision was stayed by this Tribunal on 18 April 2019 pending a decision on the review application. As such, the Applicant’s registration is taken to continue pending a final decision on the matter.[11]
[10] Australian Government, Organisation details: 91498 - Access Training Institute Pty Ltd, training.gov.au < NVR Act s 31(3).
Kirana was first registered on 21 April 2010. Its registration was initially renewed for a five-year period to 2015 and a subsequent renewal was granted for a further seven-year period. Therefore, Kirana currently remains registered until 29 April 2022.[12]
[12] Australian Government, Organisation details: 52247 - Collaboration Learning Pty Ltd, training.gov.au < Transcript dated 12 May 2020 (May 12 transcript) at 220 [15]-[20].
THE REGULATORY FRAMEWORK
The NVR Act sets out a series of objectives to be achieved by the effective regulation of the vocational education and training sector. The objects of the Act also guide the general operations undertaken by ASQA.
2A Objects
The objects of this Act are:
(a) to provide for national consistency in the regulation of vocational education and training (VET); and
(b) to regulate VET using:
(i) a standards-based quality framework; and
(ii) risk assessments, where appropriate; and
(c) to protect and enhance:
(i) quality, flexibility and innovation in VET; and
(ii) Australia's reputation for VET nationally and internationally; and
(d) to provide a regulatory framework that encourages and promotes a VET system that is appropriate to meet Australia's social and economic needs for a highly educated and skilled population; and
(e) to protect students undertaking, or proposing to undertake, Australian VET by ensuring the provision of quality VET; and
(f) to facilitate access to accurate information relating to the quality of VET.
RTOs are registered (and their registrations renewed) under the provisions of the NVR Act[13] which also provide for the making and enforcement of Standards including the Standards for Registered Training Organisations 2015 (Cth) (Standards).[14] RTOs provide accredited education and training services for students undertaking approved courses of study conducted in accordance with these Standards.
[13] As amended by the National Vocational Education and Training Regulator Amendment Act 2020 (Cth) which added, inter alia, an additional section 22A which imposes a condition of registration: “An NVR registered training organisation must demonstrate a commitment, and the capability, to deliver quality vocational education and training”.
[14] NVR Act s 185. An RTO must also comply with the Quality Standards, the Australian Qualification Framework and the Data Provision Requirements of the NVR Act.
ASQA has the functions to, inter alia, determine the registration of RTOs, conduct audits of RTOs to ensure their compliance with the NVR Act and the Standards, impose sanctions for non-compliance and promote continuous improvement within the sector.[15]
[15] Ibid s 157.
Compliance with the Standards is a mandatory requirement for continued registration of an RTO.[16] This compliance may be assessed through the process of an audit of an RTO undertaken by ASQA.[17]
[16] Ibid s 22(1).
[17] Ibid s 35.
In the event that an RTO is found, via an audit or otherwise, to be non-compliant in any way it may, in all but the most extreme circumstances, be given the opportunity to “rectify” its non-compliance.[18]
[18] Ibid s 35A.
If, after taking steps to rectify its non-compliance, a further audit or assessment by ASQA finds that the RTO remains non-compliant, then ASQA is empowered to impose sanctions on or take action against the RTO. These may range from the issuing of a written direction, the imposition of conditions on an RTO’s operations through to deregistration or refusal to re-register, or even the imposition of civil or criminal penalties through the courts.[19]
[19] Ibid pt 2, div 1, div 3 and pt 6.
CHRONOLOGY
The proceedings which took place prior to the matters being brought for hearing before the Tribunal were long and complex and are set out in ASQA’s statement of facts, issues and contentions (SFIC) dated 3 December 2019. They may be categorised under three headings:
Initial audits and cancellation notices
On 25 October 2017 ASQA undertook site audits of the Applicants resulting in the creation of an audit report for Access on 11 December 2017 (which was updated on 9 May 2018) and an audit report for Kirana on 23 October 2017[20] (which was updated on 11 May 2018).
[20] The cover page of the Kirana Audit Report states the report’s creation date to be 23 October 2017 which was prior to the actual audit. There appears no explanation for this unless some of the data was populated into the report before the site inspection took place and this reflected that earlier creation.
The results of these audits which identified non-compliances were provided to the Applicants on 4 April 2018 together with notices stating ASQA’s intention to cancel their registrations.
In accordance with the provisions of the NVR Act, the Applicants were invited to submit evidence addressing the identified non-compliances and they filed rectification evidence on 3 May 2018.
ASQA considered the rectification evidence submitted and subsequently revised its initial Access audit report of 11 December 2017 and created an updated report on 9 May 2018 (Access Audit Report). The Respondent also revised its initial Kirana audit report of 23 October 2017 and completed an updated report on 11 May 2018 (Kirana Audit Report).
The findings of the Access Audit Report were that the RTO was non-compliant with clauses 1.3, 1.7 and 1.8 of the Standards. Clauses 1.9, 1.10, 1.11 and 2.1 were not specifically referenced in that Audit Report and clause 3.1 was indicated to not have been audited.
The findings of the Kirana Audit Report were initially that the RTO was non-compliant with clauses 1.7, 1.8 and 1.26 and compliant with clause 3.1 of the Standards. On review of the rectification evidence, non-compliances were found in relation to clauses 1.3, 1.7 and 1.8. The body of the Kirana Audit Report made no further reference to clause 1.26 and this matter has not been raised in any further proceedings.
ASQA thereupon notified the Applicants on 1 June 2018 that it had affirmed its decisions to cancel the Applicants’ registrations.
The stay proceedings
Upon receipt of the June cancellation notices the Applicants applied to this Tribunal for stays of the cancellation decisions under section 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). By consent of the parties, those stays were granted by Deputy President Rayment OAM SC on 12 July 2018.
From the stay to the December 2019 hearing
Following the stays there were a series of exchanges between ASQA and the Applicants. The former sought further evidence and the latter provided some, albeit often limited and incomplete, responses as follows:
(a)20 August 2018 – ASQA provided Evidence Analysis Reports of reviews conducted on 13 August 2018 (August 2018 Evidence Analysis Reports) based on evidence filed by Access and Kirana on 6 July 2018 and 29 June 2018, respectively. After consideration of the Applicants’ submissions, ASQA determined that the Applicants remained non-compliant with clauses 1.3, 1.7 and 1.8 of the Standards.
(b)28 November 2018 – ASQA issued notices under section 26 of the NVR Act requiring the Applicants to provide further evidence of compliance by 6 December 2018.
(c)8 January 2019 – the Applicants responded to ASQA although failing to include reference to some of the specific materials requested under the section 26 notices.
(d)on or around 8 February 2019 – ASQA provided Evidence Analysis Reports following reviews conducted on 6 February 2019 for Access and 5 February 2019 for Kirana (February 2019 Evidence Analysis Reports) of the Applicants’ January 2019 submissions. Again, ASQA determined that the Applicants were non-compliant with clauses 1.3, 1.7 and 1.8
(e)8 February 2019 – the Applicants produced evidence as requested by the section 26 notices, although ASQA regarded the details in the responses to be incomplete.
(f)29 March 2019 – ASQA prepared further Evidence Analysis Reports following reviews conducted on 29 March 2019 (March 2019 Evidence Analysis Reports) still identifying the same non-compliances.
(g)28 and 30 May 2019 – the Applicants filed further material in response to the ASQA findings.
(h)on or around 12 June 2019 – ASQA considered the Applicants’ May 2019 submissions in further reviews conducted on 12 June 2019 and affirmed its non-compliance findings in further Evidence Analysis Reports (June 2019 Evidence Analysis Reports).
(i)4 July 2019 – this Tribunal directed the Applicants to file all affidavits and reports by 27 September 2019. This Direction was not complied with and Deputy President Constance issued a new direction for the filing of witness statements and other evidence by 30 October 2019, expert reports by 8 November 2019 and an amended SFIC by 11 November 2019.
(j)30 October 2019 – the Applicants filed additional material in the form of some 2,800 files (effectively the Applicants’ May 2019 submissions to the Respondent[21]) which were presented in a hyperlinked index although not collated in a manner that allowed for the Tribunal to conduct its review in a quick and efficient manner.
(k)3 December 2019 – ASQA provided final Evidence Analysis Reports following reviews conducted on 28 November 2019 for Access and 29 November 2019 for Kirana (November 2019 Evidence Analysis Reports) of all the material submitted on 30 October 2019. ASQA subsequently reaffirmed its findings that the Applicants were non-compliant with clauses 1.3, 1.7 and 1.8 of the Standards
(l)10 December 2019 – the hearings in these matters commenced in the Tribunal.
[21] Statement of Andrew Croft for Access dated 30 October 2019 (AC October 2019 Access statement) at [58]; Statement of Andrew Croft for Kirana dated 30 October 2019 (AC October 2019 Kirana statement) at [67].
In Trades College Australia Pty Ltd and Australian Skills Quality Authority, Deputy President Rayment and Senior Member Fairall observed:
We were also presented with thousands of documents by both sides, most of which were unnecessary for the resolution of the case. Many side issues were the subject of further evidence, despite their marginal nature. That approach is not consistent with the duty of the parties to assist the Tribunal to conduct the proceedings economically and quickly, so as to reach the correct or preferable decision without wasteful use of the resources of the Tribunal.[22]
[22] [2020] AATA 812, [14].
This Tribunal can only endorse those sentiments in the strongest terms. It was confronted with some 2,800 plus documents in excess of 60,000 pages. Reference was made to only a relatively small percentage of those pages.
TRIBUNAL’S DIRECTIONS
The Applicants consistently failed to comply with the directions of the Tribunal regarding the filing of evidence. Specifically, they failed to comply with the:
(a)direction of Conference Registrar Desses dated 23 October 2018 to file rectification evidence by 1 December 2018. The Applicants did not file rectification evidence until 7 January 2019.
(b)direction of this Tribunal dated 8 February 2019 to file material with the Tribunal by 30 April 2019.
(c)direction of this Tribunal, by consent of the parties, dated 10 May 2019 to file material with the Tribunal by 16 May 2019.
(d)direction of this Tribunal dated 27 May 2019 granting an extension to 4 July 2019 to file material with the Tribunal.
(e)direction of this Tribunal dated 4 July 2019 to file material by 27 September 2019.
(f)direction of Deputy President Constance dated 24 October 2019 to file other evidence by 30 October 2019 (this was complied with), any expert report by 8 November 2019 (this was not complied with until 15 November 2019) and a statement of facts, issues and contentions by 11 November 2019 (this was not complied with until 25 November 2019).[23]
(g)direction of Deputy President Constance dated 25 November 2019 for the Applicants to file a tender bundle by 29 November 2019 containing the key documents which the Applicants seek to rely on from their USB material filed on 30 October 2019 and later amended on 29 November 2019 (EXAC1). By 29 November 2019, the Applicants refiled witness statements which referred to EXAC1 and an expert report but failed to provide a tender bundle of the EXAC1 content as directed.
[23] Referenced in transcript dated 11 December 2019 (December 11 transcript) at 39 [11]-[30].
THE EMERGENCE OF OTHER NON-COMPLIANCE FINDINGS BY ASQA
In its SFIC dated 2 April 2019, ASQA dealt at some length with the findings of non-compliance related to clauses 1.3, 1.7 and 1.8 of the Standards. These were findings arising directly from the various Audit Reports and Evidence Analysis Reports.
However, that SFIC expanded on the non-compliances:
53. The Respondent contends that the Applicants have not produced evidence that it has ever complied with the requirements of Clause 2.1 of the Standards to be compliant against all the Standards at all times.
54. The Respondent contends that it is clear on the evidence of the failure to comply with Clause 1.8 of the standards that the Applicants have not implemented a plan for ongoing systematic validation of assessment practices and judgements and are therefore non-compliant against Clauses 1.9, 1.10 and 1.11 of the Standards.
55. Pursuant to the failure of the Applicants to comply with Clauses 1.3, 1.7 and 1.8 of the Standards, the Respondent contends that the Applicants are also non-compliant against Clause 3.1 of the Standards.
Prior to the scheduled commencement of the resumed hearing on 11 December 2019, which was adjourned the previous day to allow the Applicants time to file evidence in reply to material submitted by the Respondent in December 2019, the Applicants lodged a statement by Mr Zeeshan Rana dated 10 December 2019 together with several hundred pages of attachments.
When the hearing resumed on 11 December 2019, Counsel for the Applicants sought an adjournment of the hearing contending that a procedural issue might arise if the Applicants are not given an opportunity to respond to the Respondent’s contentions regarding clauses 1.9, 1.10, 1.11, 2.1 and 3.1 of the Standards. The following exchange took place:
Mr Nagle [Counsel for the Applicants]: … All I’m saying is this; if this proceeding is going to traverse other matters other than 1.3, 1.7 and 1.8; I accept what you said about 2.1, but if we’re going to look at systems for continuous improvement that are in place, my client should really be given an opportunity to put on evidence. I have a really fundamental difficult[y] with the way that this is going to proceed if that’s the case that’s being run against me.
Senior Member: Let me just have a quick look at the SoFIC. Just give me a moment.
Mr Nagle: I accept it’s in paragraphs 60, 61 and 62 where it is now alleged that 2.1, 1.9, 1.10, 1.11 and 3.1 are not complied with and that it is said that there is no - it’s alleged that we haven’t implemented a plan for ongoing systematic validation of assessment practices and judgments, et cetera. That’s contrary to my instructions that I hold, somewhat informally having discussed things with my client. It’s just not correct to even put that statement, but it’s never been looked at by an auditor. There is further evidence that we can put on. There is a real procedural issue if we continue this hearing in this manner.
Senior Member: I understand what you’re saying but Mr Lloyd[24] rightly points out that both 2.1 and 3.1 are clearly raised in ASQA’s statement. It’s also fact, as I’m sure you’re aware, that section 33(1)(c) of the Administrative Appeals Tribunal Act reads:
The [T]ribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.
To the extent that clearly in the SoFIC ASQA has put the [A]pplicant[s] on notice that there is an issue which it has raised, and it is entitled to raise an issue which wasn’t specified in the audit report.
Mr Nagle: Well, 3.1 was, and it was found to be compliant; let’s remember that, that’s - - -
Senior Member: Yes.
Mr Nagle: There’s an issue there. Senior Member, I hear what you say, I’m just going to have to ask for an adjournment at the end of the cross-examination so that my client can obtain documents that I can tender in re-examination, and that will put my learned friend at a significant forensic disadvantage, because he won’t be able to cross-examine on the documents.[25]
[24] Mr Lloyd was the solicitor representing ASQA.
[25] December 11 transcript at 35 [24] – 36 [18].
Although the Applicants were clearly on notice as from 2 April 2019 that ASQA had extended its contentions of non-compliance from clauses 1.3, 1.7 and 1.8 to encompass clauses 1.9, 1.10, 1.11, 2.1 and 3.1, the Tribunal acceded to the Applicants’ request for an adjournment to allow them to put on further material in this regard. In part this decision was forced upon it by the Applicants’ provision of a substantial amount of documentation the day before the resumed hearing which was impossible for the Tribunal and likely also ASQA to absorb and analyse in detail prior to the hearing itself.[26]
[26] Hana Group Pty Ltd and Australian Skills Quality Authority [2019] AATA 4146, [30].
There is, however, no doubt that since April 2019 all the grounds upon which ASQA relies for findings of non-compliance had been fully exposed and notified to the Applicants and there can be no suggestion that the Applicants were not aware of them since that date, regardless of their responses, or lack thereof, to them.
Following the adjournment, on 18 December 2019 the Applicants submitted a further expert report by Ms Judith Bowler which contained several attachments. On 7 February 2020, per the Tribunal’s direction dated 19 December 2019, the Applicants also filed a statement by Mr Andrew Croft together with several hundred more pages of documentation (EXAC2 – EXAC11).
A LATE INTERVENTION
After the conclusion of the hearing in the matters on 12 May 2020, the Tribunal reserved its decisions in order to consider the material and write its determinations. Before those processes had been completed, the Respondent formally drew to the attention of the Tribunal a report by SV Partners who had been appointed as liquidator for Thorne Moir Pty Ltd. The report is titled Thorne Moir Pty. Ltd. (In Liquidation) As Trustee for the Thorne Moir Trust: Update Report to Creditors (SV Partners Report) and is dated 31 March 2020.
The Respondent forwarded this report to the Tribunal on 3 June 2020 pursuant to section 38AA of the AAT Act which reads:
38AA Ongoing requirement for lodging material documents with Tribunal
(1) If:
(a) subsection 37(1) or (1AAB) applies to a person in relation to an application for review of a decision; and
(b) at any time after the end of the applicable period under the subsection and before the Tribunal determines the review:
(i) the person obtains possession of a document; and
(ii) the document is relevant to the review; and
(iii) a copy of the document has not been lodged with the Tribunal in accordance with the subsection;
the person must, subject to any directions given under section 18B, lodge a copy of the document with the Tribunal as soon as practicable after obtaining possession.
(2) Subsections 37(1AA), (1AE), (1AF) and (1AG) apply in relation to the requirement in subsection (1) of this section as if:
(a) that requirement were the requirement referred to in those subsections; and
(b) the references in subsections 37(1AE) and (1AF) to lodging or giving within a period were references to lodging or giving as soon as practicable.
It was the Respondent’s contention that an initial reading of the SV Partners Report “may go perhaps to the current viability/status of the Applicants in the Proceedings – a condition of registration”.[27]
[27] Email from Mr Lloyd to the Tribunal dated 3 June 2020.
In response, the Applicants objected to the communication from the Respondent which they stated was “sent without notice or consent” and “has no relevance to any of the contentions ventilated before the Tribunal at the hearing, and the purported filing of [the SV Partners Report] after the close of proceedings is inappropriate”.[28]
[28] Email from Mr Vickers to the Tribunal dated 4 June 2020.
The Applicants also referred to rule 22.5 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) which states as follows:
22.5 A solicitor must not, outside an ex parte application or a hearing of which an opponent has had proper notice, communicate in the opponent’s absence with the court concerning any matter of substance in connection with current proceedings unless:
22.5.1 the court has first communicated with the solicitor in such a way as to require the solicitor to respond to the court, or
22.5.2 the opponent has consented beforehand to the solicitor communicating with the court in a specific manner notified to the opponent by the solicitor.
However, it is clear that any decision-making party to the proceedings is under a statutory obligation to provide additional material to the Tribunal prior to its determination of the review, if that material comes into their possession and is relevant to the application for review and that material was not otherwise before the Tribunal.
Section 38AA was added to the AAT Act by passage of the Tribunals Amalgamation Act 2015 (Cth). The Explanatory Memorandum to the Bill describes this addition as representing a “continuous disclosure obligation” designed to ensure that “[t]he proper conduct of reviews is assisted by the Tribunal having all relevant information before it”.[29]
[29]Explanatory Memorandum, Tribunals Amalgamation Bill 2014 (Cth) [475].
The Tribunal’s own Practice Direction[30] provides:
[30] Administrative Appeals Tribunal, Practice Direction: Lodgement of Documents under Sections 37 and 38AA of the AAT Act (30 June 2015) < Ongoing requirement to lodge relevant documents under section 38AA
9.1 After the time for complying with section 37 has ended and before the review is determined, a decision-maker must lodge with us a copy of any document that comes into the decision-maker’s possession and is relevant to the review, other than any document:
(a) previously lodged with us under section 37;
(b) already given to us by another party; or
(c) we have given to the decision-maker.
9.2 A Section 38AA document must be lodged as soon as practicable after the decision-maker obtains possession or control of the document.
9.3 The decision-maker must also give a copy of any Section 38AA document to any other party at the same time, unless the decision-maker applies for a direction under section 35 of the AAT Act in relation to the document in accordance with the procedures specified in Section 3 of this Direction.
In his authoritative study, Professor Dennis Pearce writes:
It was originally unclear whether the documents that a decision-maker must produce are limited to those in its possession at the time of making the decision or can include others that have come into possession after that time but which are relevant to the decision that the AAT has to review: different views were expressed by the Tribunal. The matter has now been resolved by the inclusion of s 38AA in the AAT Act in 2015. The section extends the obligation of a decision-maker who is required to lodge documents under s 37 to include lodging with the Tribunal further documents that come into the possession of the person that are relevant to the review by the Tribunal. Such documents must also be given to the parties as soon as practicable ...
This is a significant extension of the obligation on the decision-maker to keep the Tribunal informed during the course of the proceedings and before a decision is made by the Tribunal.[31]
[31] Dennis Pearce, Administrative Appeals Tribunal (LexisNexis Butterworths, 4th ed, 2015s) 196 [12.5]. Citations omitted.
It is thus clear that when the SV Partners Report came into the possession of ASQA, to the extent that it considered it to be relevant to the applications for review, it was under an obligation to provide it to the Tribunal. There can be no basis for any criticism of ASQA’s actions in this regard.
In any event, it is also clear that the Tribunal may take whatever steps it considers appropriate to inform itself fully of the matters which it needs to consider. Section 33 of the AAT Act provides:
33 Procedure of Tribunal
(1) In a proceeding before the Tribunal:
(a) the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;
(b) the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and
(c) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.
Decision-maker must assist Tribunal
(1AA) In a proceeding before the Tribunal for a review of a decision, the person who made the decision must use his or her best endeavours to assist the Tribunal to make its decision in relation to the proceeding.
Parties etc. must assist Tribunal
(1AB) A party to a proceeding before the Tribunal, and any person representing such a party, must use his or her best endeavours to assist the Tribunal to fulfil the objective in section 2A.
In order to establish whether or not any matters in the SV Partners Report are relevant to the determination of this matter, the Tribunal made a direction on 5 June 2020 requiring the Respondent to provide a statement outlining the relevance of the SV Partners Report to the applications for review (limited to two pages) by 10 June 2020 and for the Applicants to provide a statement in reply (also limited to two pages) by 12 June 2020.
ASQA’s submission eventually ran to six pages and contained a great deal of new material derived from consideration of the SV Partners Report. In effect, ASQA further alleges that the Applicants have, if all the details of the SV Partners Report are taken to be accurate, become non-compliant with a number of additional clauses in the Standards and sections of the Act. Specifically, ASQA asserts that:
The Applicant is non-compliant against Sections 22 (1) and 25 of the NVR Act because it knowingly failed to advise the Respondent that,
(i) it was unable to pay an amount of $1,134, 617.03 owed to KP;
(ii) it was an entity related to KP and that KP entered Voluntary Administration;
(iii) it was having cash flow issues related to the loss of its State government training contracts;
(iv) VET-Fee Help claims from it a debt in excess of $1,000,000; and
(v) it was in administration.[32]
[32] Respondent’s submissions dated 10 June 2020 at [39].
In addition, non-compliance is alleged in relation to sections 24 and 27 of the NVR Act because, if the Applicant (Access) is in administration, it fails to meet the Financial Viability Risk Assessment Requirements of the Act and cannot perform its statutory duties as required.
Finally, the Respondent contends that:
Further, under Section 33 (1AB) of the AAT Act, the Applicant must “use its best endeavours to assist the Tribunal to achieve the objective in Section 2A”. The Respondent submits that by withholding probative evidence (particularly the fact that Access is in administration) the Applicant has not complied with Section 33 (1AB) of the AAT Act.[33]
[33] Ibid at [49]
The Applicants’ submission made a number of points to the contrary, viz:
(a)As the Applicants do not consider anything in the SV Partners Report to be “relevant” to the proceedings before the Tribunal ASQA was not under any section 38AA obligation to draw the material to the Tribunal’s attention;
(b)It would be procedurally unfair to allow ASQA to “lead further evidence by e-mail” and to allow such course of action would require the matters be re-opened for hearing, ASQA would be required to amend its SFIC and the Applicant is to be given an opportunity to contest these allegations and test the evidence; and
(c)In any event, it remains open to ASQA to pursue “further causes of action” separate to these proceedings.[34]
[34] Applicant’s submission dated 12 June 2020 at [3], [4] and [7].
In support of its claims of (ir)relevancy, the Applicants drew attention to section 55 of the Evidence Act 1995 (Cth) which provides:
55 Relevant evidence
(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2) In particular, evidence is not taken to be irrelevant only because it relates only to:
(a) the credibility of a witness, or
(b) the admissibility of other evidence, or
(c) a failure to adduce evidence.
The Tribunal does not believe that it would be procedurally fair to allow ASQA to lead evidence at this stage of the proceedings which alleges non-compliances which were not identified in its original cancellation determination or in its SFICs to the Tribunal.
However, it is relevant that the Applicant (Access) did not see fit to inform the Tribunal of its financial status. This is, in part, because when the Tribunal is asked to give consideration to the ongoing position of staff and students, and also come to the correct or preferable decision, the financial position of the Applicant would have been a relevant consideration.
Of concern to the Tribunal is the revelation in the SV Partners Report that KP Services Management Pty Ltd, formerly known as Kirana Payroll Services Pty Ltd, a company with which the Applicants have an intimate association as part of the same Kirana Education Group, was placed in voluntary administration on 21 February 2020 and allegedly shares the same administrator as Access. This event took place during the course of the Tribunal’s hearings and it was a matter which should have been brought to its attention by the Applicants who had full knowledge of it. The Tribunal is now left in a situation where it must come to a correct or preferable decision about Access’ state of registration as an RTO but is prevented from taking these matters into consideration.
Also of interest to the Tribunal is a paragraph in the SV Partners Report which reads:
On 13 February 2018, Kirana [Payroll Services Pty Ltd] filed a Defence in the District Court of New South Wales. Kirana asserted that the Company [Thorne Moir Pty Ltd] had failed to provide them with compliant and satisfactory training and assessment materials in accordance with the standards and requirements of the Education Writer Contractor Agreement entered between parties in 2015.[35]
[35] Thorne Moir Pty Ltd (In Liquidation) As Trustee for the Thorne Moir Trust – Update Report to Creditors (SV Partners Report) at [2.1].
The failure of the Applicants’ to draw the SV Partners Report to the attention of the Tribunal thus leaves it in a difficult position. On the face of it, there is a report that Kirana Payroll Services, which acts on behalf of all Kirana Education Group RTOs, was concerned about the quality of compliance materials which it had purchased, but there is no direct evidence that this material was specifically purchased for or used by either of the Applicants. It may have been, it may not. Had the Applicants been forthcoming with the Tribunal about the SV Partners Report in the first instance it would have been possible for such a matter to have been resolved during the hearings. Instead, all that is left is a lingering suspicion, in itself not sufficient to draw any final conclusions about the Applicants’ alleged non-compliances and which, as such, will not be considered for the present matters under reviews.
It does however call into question the extent to which the Applicants have been fully frank and forthcoming in their evidence to the Tribunal.
APPROACH TO THE ALLEGED NON-COMPLIANCES AND THE ROLE OF THE TRIBUNAL
The Tribunal accepts that ASQA has made audit-based findings against the Applicants in relation to alleged non-compliances with clauses 1.3, 1.7 and 1.8. It also accepts that ASQA has, in its review of materials submitted by the Applicants, come to the conclusion that they are non-compliant with clauses 1.9, 1.10 and 1.11. Finally, the Tribunal accepts that if non-compliance with those clauses of the Standards are established then, as ASQA submits, there would be consequential and automatic non-compliance with clauses 2.1 and 3.1.
The Tribunal does not propose to attempt to review all the evidence before it, which it has noted above at paragraph 30, but rather to examine that evidence which relates to each of the alleged non-compliances and will refer to other evidence only to the extent of its relevance to those matters. Each clause will be examined separately taking into account ASQA’s evidence and that of the Applicants.
On review the Tribunal stands in the shoes of the original decision-maker.[36] It must make its decisions on a de novo basis. It must take into account all of the evidence before it, including any evidence which was not before the original decision-maker at the time of their initial determination.[37] The Tribunal itself is not bound by the strict rules of evidence but may inform itself “on any matter in such manner as it thinks appropriate”.[38]
[36] Australian Skills Quality Authority v Brighton Pacific Pty Ltd [2020] FCA 617, [36]; AFY18 v Minister for Home Affairs [2018] FCA 1566, [9] per Charlesworth J; Secretary, Department of Employment, Education, Training and Youth Affairs v Mackay (1998) 58 ALD 130; Secretary, Department of Social Services v Hodgson (1992) 27 ALD 309, 316; Hutchinson v Comcare [2019] FCA 1440, [3].
[37] Shi v Migration Agents Registration Authority [2008] HCA 31, [37] per Kirby J; Echelon National Security Agency Pty Ltd and Australian Skills Quality Authority [2014] AATA 151, [17].
[38] Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) s 33(1)(c).
WITNESSES
Before turning to the evidence, the Tribunal will identify each of the witnesses who gave oral evidence in addition to their written submissions.
Ms Jane Connors
Ms Jane Connors is currently the Principal Regulatory Officer in ASQA’s Sydney regulatory team. She is highly qualified and experienced, holding several degrees and most recently a Certificate IV in Government (Investigation).
She has some ten years’ experience in VET regulatory activities before which she was a teacher at TAFE NSW. She has undertaken numerous ASQA audits and was part of the team which undertook the October 2017 audits of the Applicants. Ms Connors was the review officer for the various Evidence Analysis Reports and provided three affidavits in the proceedings as well as giving oral testimony.
The Tribunal places great weight upon her experience and her expressed professional opinions.
Ms Judith Bowler
Ms Judith Bowler is a highly experienced expert in the VET sector and has appeared as a respected expert witness before the AAT on numerous occasions. She now works as a consultant for RTO Advance, prior to which she operated a large RTO and was for three years a lead auditor with one of ASQA’s predecessors, the National Audit and Registration Authority.
She has particular expertise in the area of disability services holding an Associate Diploma in Rehabilitation Counselling and membership in the Australian Society of Rehabilitation Counsellors.[39] Ms Bowler provided two reports to the Tribunal and gave oral evidence.
[39] Transcript dated 7 May 2020 (May 7 transcript) at 132 [6]-[13].
As with Ms Connors, the Tribunal places great weight upon her experience and expressed professional opinions.
Mr Zeeshan Rana
Mr Zeeshan Rana is the Chief Executive Officer (CEO) of Kirana and formerly the CEO of Access.[40]
[40] December 11 transcript at 23 [17]-[30].
He provided several detailed statements to the Tribunal and gave extensive oral evidence.
Mr Rana was, at all material times, the chief responsible officer of the Applicants and fully aware of all their activities, finances and registration requirements.
Mr Andrew Croft
Mr Andrew Croft is the Applicant’s Education and Quality Manager. He agreed under cross-examination that he was also the Applicant’s “compliance manager”.[41]
[41] Transcript dated 6 May 2020 (May 6 transcript) at 41 [35].
He has been involved with a large number of RTOs and has participated in more than 30 regulatory audits.[42]
[42] AC October 2019 Access statement at [6]; AC October 2019 Kirana statement at [6].
Mr Croft was challenged by ASQA’s representative as to his qualifications as follows:
Mr Lloyd [legal representative for ASQA]: … Paragraph five, there are three qualifications that you list there Mr Croft. Which colleges did you earn those qualifications from?
[Mr Croft]: So the first, certificate IV in training and assessment was through – it was quite some time ago – Cool Link Pty Ltd. The second, the diploma of business – actually both the diploma of business and the diploma of leadership and management were through Interglobal Associates.
[Mr Lloyd]: Were they obtained while you were a director of that organisation?
[Mr Croft]: Yes, they were.
[Mr Lloyd]: That certificate IV in training and assessment, is that current?
[Mr Croft]: No, it’s not. It’s been superseded.
[Mr Lloyd]: Do you have any qualifications in training and assessment or do you hold a diploma of auditing?
[Mr Croft]: No, I do not. I hold a statement of attainment in quality auditing, not the full qualification.[43]
[43] May 6 transcript at 44 [26]-[42].
Regardless of formal qualifications, Mr Croft was able to answer, either directly or else after consulting electronic and other records to which he had immediate access, all the questions put to him with a degree of certainty.
Mr Croft provided several statements accompanied by extensive attached material and gave lengthy oral evidence.
AN INTRODUCTORY PRINCIPLE
It was put to the Tribunal by Counsel for the Applicants that it should have particular regard to a recent statement by the Tribunal in Trades College Australia, namely:
We have concluded that in future cases where there is a contest about non-compliances, ASQA must start and do so without the assumption that its allegations of non-compliance are prima facie correct.[44] (Emphasis added by Applicants).
[44] Trades College Australia Pty Ltd and Australian Skills Quality Authority [2020] AAT 812, [13].
There is nothing remarkable about this principle. The purpose of an audit is to assess continuing compliance once an RTO has been registered and it is only if non-compliance is identified that further steps follow. The burden therefore always lies upon ASQA to demonstrate an applicant’s non-compliance.
The Act provides, at section 35, that ASQA “may” conduct audits of RTOs, which it does regularly to assure itself that RTOs remain compliant.
35 Audits
(1) The National VET Regulator may, at any time, conduct a compliance audit of an NVR registered training organisation's operations to assess whether the organisation continues to comply with this Act or the VET Quality Framework.
If non-compliance is found, before any sanctions may be applied under section 36, ASQA is required to accord natural justice to the RTO in question (s 36(1)(a)) unless there are compelling reasons not to do so (s 36(1)(b)). The natural justice requirements are defined in s 37(1) to include giving written notice which states ASQA’s intention to implement a sanction and the reasons for the proposed decision and giving the RTO an opportunity to respond.
On the other hand, mere denial of non-compliance by an applicant is equally insufficient. In Re Griffiths and Grif-Air Helicopters (a matter concerning a request for a stay order against a decision of the Civil Aviation Authority) the Tribunal stated:
Mr Griffiths has denied the allegations but, apart from his denial, has not led any evidence. On their own and against the weight of evidence led to date by CAA, they do not lead us to conclude that he has made out a prima facie case.[45]
[45] Re Griffiths and Grif-Air Helicopters Pty Ltd and Civil Aviation Authority (1993) 31 ALD 380, 385.
Equally, evidence from an applicant to show that findings of non-compliance have been addressed cannot succeed if it is just “of a general nature and simply lacks specific detail as to any significant meaningful attempts at rectifying the non-compliances”.[46]
ALLEGED NON-COMPLIANCES
[46] Trades College Australia Pty Ltd and Australian Skills Quality Authority [2018] AATA 1360, [20].
Clauses 1.3 and 1.7
For the sake of convenience, the Tribunal will consider these two clauses together as they are inextricably linked in terms of relating to the provision of educational and support services to students.
The relevant clauses provide as follows:
1.3. The RTO has, for all of its scope of registration, and consistent with its training and assessment strategies, sufficient:
a) trainers and assessors to deliver the training and assessment;
b) educational and support services to meet the needs of the learner cohort/s undertaking the training and assessment;
c) learning resources to enable learners to meet the requirements for each unit of competency, and which are accessible to the learner regardless of location or mode of delivery; and
d) facilities, whether physical or virtual, and equipment to accommodate and support the number of learners undertaking the training and assessment.
1.7. The RTO determines the support needs of individual learners and provides access to the educational and support services necessary for the individual learner to meet the requirements of the training product as specified in training packages or VET accredited courses.
In considering compliance with clause 1.3, an immediate difficulty arises in relation to use of the term “sufficient”. Whereas in clause 1.10 (discussed below) certain objective standards of measurement are set out in terms of time frames and figures, no such guidance is found in relation to clause 1.3.
The Respondent’s SFIC dated 2 April 2019 is unhelpful in this regard as it uses both the terms “sufficient” and “adequate” without defining what would be required to meet these requirements.[47] In relation to some specific courses, it refers to there not being “any” evidence of education and support services being provided.[48] The reference to “any” has at least a quantitative dimension about it: there either is, or is not, at least something tangible. By contrast, “sufficiency” is a consideration that can include quantitative or qualitative elements or could embrace both those requirements.
[47] Respondent’s statement of facts, issues and contentions (SFIC) dated 2 April 2019 at [52.1] and [52.3], respectively.
[48] Ibid at [52.6].
Ms Connor’s affidavits of 2 December 2019 add to this difficulty for the Tribunal. They state:
[In relation to Access] The Applicant remains non-compliant against Clause 1.3 of the Standards because it has not demonstrated that it has sufficient educational and support services to meet the needs of the learner cohort/s currently undertaking the training and assessment.[49]
[In relation to Kirana] The Applicant remains non-compliant with the requirements of Clause 1.3 of the Standards because it has not demonstrated that it has sufficient educational and support services to meet the needs of the learner cohort/s currently undertaking the training and assessment.[50]
[49] Affidavit of Jane Connors for Access dated 2 December 2019 (JC December 2019 Access affidavit) at [15].
[50] Affidavit of Jane Connors for Kirana dated 2 December 2019 (JC December 2019 Kirana affidavit) at [15].
This formulation is almost exactly the same, in terms of its wording, as that used in the Access Audit Report and Kirana Audit Report.[51] Both refer to “sufficient educational and support services” as quoted from clause 1.3 itself.
[51] Access Audit Report at 8; Kirana Audit Report at 8.
Similarly, when Ms Connors was asked about her assessment of compliance in relation to counselling and support services for students, the following exchange occurred:
[Mr Nagle]: Did you think it’s a relevant matter when determining whether these applicants were compliant whether they offer counselling to students at no cost?
[Ms Connors]: I thought it was relevant whether they offer adequate student support. I didn’t see sufficient evidence of that.[52]
[52] Transcript dated 8 May 2020 (May 8 transcript) at 187 [36]-[39].
In an attempt to get some clarification for the Tribunal as to the meaning of “sufficient” within the context of this assessment of non-compliance, the following exchange took place between the Tribunal and Ms Connors:
[Senior Member]: I have one final question to ask you, and I hope that this is not going to open the most appalling can of worms, but in your audit report, and I do mean audit report, of 9 May 2018, when you look - this is on page 33, or what appears to be page 33, so it will be - that’s what’s paginated at the bottom, starting on page 25. It’s seven or eight pages in. Anyway, I’ll read it to you:
“Although the organisation provided policies and procedures, correspondence to staff and information to students, the organisation did not provide evidence that it had sufficient educational and support services to meet the needs of the learner cohorts during the workplace component of the qualification.”
[Ms Connors]: Yes.
[Senior Member]: What do you mean by the term “sufficient”?
[Ms Connors]: I’ll just get the document. Is it Access?
[Senior Member]: Yes, it’s the Access audit report of 9 May 2018, and it occurs five or six pages in. It’s under the heading, “Clause 1.3” which starts the previous page, and then the final line on that page is:
“These practices and behaviours are non-compliant with clause 1.3 of the Standards for RTOs 2015.”
Have you got that page?
[Ms Connors]: At the bottom, yes. Yes.
[Senior Member]: Okay, the paragraph above that?-
[Ms Connors]: Yes.
[Senior Member]: “Did not provide evidence that it had sufficient educational and support services.” Just asking if - can you just elaborate slightly for me on what you mean by the term, “sufficient?”
[Ms Connors]: Yes. For the workplace - it wasn’t evident that there was sufficient capacity for the trainer assessors to visit the students at the workplace in order to conduct the mandated workplace assessment, and/or to liaise with the workplace supervisors to confirm that the students were performing all of the tasks required (indistinct)
…
So there was a lot of documentation about what the students need to do at the workplace and they need to get their supervisor, for example, to sign off on hours and just documented procedures, but there wasn’t sufficient evidence that the trainer assessors had the capacity to conduct assessment or training that was sufficient in terms of face-to-face contact with the trainer assessors and in terms of verifying the third party evidence. So we don’t expect that the trainer assessors can go to a childcare centre for 120 hours for every student, but there needs to be sufficient evidence that they have confirmed the student’s performance for all the required tasks that the training package needs them to be across to operate at an industry level, and there also needs to be support for the students in training and in delivering assessment, and there are also some assessments that the trainer must conduct at the workplace; for example, there’s one unit in childcare, and we had completed student assessments where the assessor needed to see them with, say, for example, there’s a unit that requires they’re observed with three babies and toddlers of different babies and toddlers, three different ones, and the assessor has only observed with one. So there wasn’t evidence of enough manpower, suitably qualified manpower assigned to have an effective work placement that would ensure students were adequately trained on the workplace and adequately assessed.
[Senior Member]: Okay. So you’re saying that there may have been some educational and support services, but that your qualitative assessment was that they were insufficient?
[Ms Connors]: Yes, and in fact there was very little evidence that the assessors had contact with the workplaces.[53] (Emphasis added)
[53] Transcript dated 8 May 2020 at 211 [19] – 212 [34].
All these interests need to be weighed against the non-compliances and the interests of the Applicants before deciding on any appropriate sanction(s) to be applied.
FINDINGS AND APPROPRIATE SANCTIONS
The Applicants have not helped themselves by clearly failing to respond adequately to the section 26 notices, although this matter is not pressed by ASQA.[170]
[170] May 12 transcript at 240 [27]-[33].
Similarly, they have displayed an utterly cavalier disregard for compliance with the directions of this Tribunal as outlined above. Although such matters are legitimate subjects for a decision-maker to take into account under section 36(3) of the Act, the Tribunal has not done so.
Of the eight clauses of the Standards for which non-compliances have been raised against the Applicants, the substantive findings of the Tribunal are that:
·Kirana is non-compliant with clauses 1.8, 1.9, 1.10 and 1.11 and hence is derivatively also non-compliant with clauses 2.1 and 3.1, and
·Access is non-compliant (albeit to a lesser degree than Kirana) with clauses 1.8, 1.9 and 1.11 and hence is derivatively non-compliant with clauses 2.1 and 3.1.
At the heart of the Applicants’ non-compliances are their deficiencies in relation to their assessment practices and systems for validation of these assessment practices. Non-compliance with Standards which relate to assessment are serious in that they go to the heart and the whole raison d’etre of the vocational education and training system. Unless assessments are valid and unless qualifications are granted only to those who have properly attained them then the whole VET system is threatened. This is recognised by ASQA in its guidelines on the conduct of effective assessment:
ASQA’s regulatory experience shows that many RTOs continue to struggle to demonstrate compliance with Standard 1, in particular with clause 1.8. This calls into question the integrity of the qualifications issued and in the long term can have a detrimental effect on student and employer confidence in the outcomes of the training system.[171]
[171] Australian Skills Quality Authority, Clauses 1.8 to 1.12—Conduct effective assessment <>
A finding of non-compliance may, if of a relatively minor nature, lead to sanctions at the lower end of the scale. However, if persistent, especially after numerous rectification opportunities, it cannot pass without some heavier sanction being applied.
The instances on non-compliance can be divided into three categories:
(a)Clause 1.8: Both Access and Kirana were on notice from the time of the audits in 2017 that non-compliances had been found in relation to clause 1.8. The basis for the Applicants’ non-compliance findings were articulated and the Applicants effectively have had, since 2017, ample opportunities for remediation;
(b)Clauses 1.9, 1.10 and 1.11: the Applicants first became aware of the non-compliance findings through ASQA’s SFIC of April 2019. In these instances, there was no detailed particularisation of the basis for the non-compliance findings and the Applicants thus had limited opportunity for effective remediation;
(c)Clauses 2.1 and 3.1: due to their “derivative” nature these non-compliances are consequential upon antecedent findings and do not, of their very nature, allow any scope for effective remediation.
The Applicants have had numerous opportunities to address and remedy their non-compliant assessment systems and practices since 2017, yet they have not done so in a meaningful and demonstrable fashion.
However, it should not be discounted that the Applicants have demonstrated a willingness to remedy non-compliances and deficiencies in their assessment practices as seen through their purchase of the Eduworks materials and attempts to contact former students to return for gap training. Although their pace for doing so has been unremarkable, bordering on tardy, and whilst implementation of such materials has been claimed, this has not been demonstrated in practice to the Tribunal.
The Tribunal raises this as an important consideration because, should the Applicants be allowed to continue progressing students through their courses, if the compliant assessment materials are not implemented fully and in a timely fashion, and the non-compliant assessment tools and practices completely removed, the consequences are that there will continue to be students who complete their courses with the Applicants resulting in non-compliant or only partially compliant qualifications. This concern is particularly significant in the context that very few students, as demonstrated through the Applicants’ very own statistics, return for gap assessment.
This has ripple effects on the public that the Tribunal cannot, and must not, ignore. A number of the courses offered by the Applicants have the potential to have a direct impact on the health, safety and wellbeing of members of the public, particularly vulnerable members of the community, if inappropriate qualifications are issued.[172] These include such courses as Early Childhood Education and Care, Individual Support, Ageing Support, Disability Support, Work Health and Safety and Warehousing Operations. The Tribunal is aware that, standing in the shoes of the national regulator, and as the High Court has stated “[t]he AAT and the primary decision-maker exist within an administrative continuum”[173] of decision-making, it has a duty to maintain the consistent regulation of the VET sector to ensure the integrity of education and training delivered by RTOs in order to protect Australia’s reputation for its high-quality vocational education.
[172] May 12 transcript sat 242 [35]-[40].
[173] Frugtniet v Australian Securities and Investments Commission [2019] HCA 16, [53].
The Tribunal is also aware that it must ensure the protection of students undertaking, or proposing to undertake, vocational education and training so that they are provided with quality training and assessment, in which the Audit Reports and Evidence Analysis Reports have shown the Applicants to be deficient.
However, in determining the appropriate actions or sanctions to be imposed against the Applicants it is also conscious of the fact that, at present Kirana has approximately 800 students enrolled whilst Access has no students enrolled. This itself is something of a curiosity and while ASQA implies that this results from some possibly “deliberate shift of students”[174] between the two Applicants, this matter was not explored in the hearings and any reasons for this significant change in enrolment numbers cannot be established.
[174] Respondent’s submission dated 10 June 2020 at [48].
Deputy President Hanger in Brighton Pacific made it clear that cancellation of registration is not the only sanction available and that decisions on sanctions should give consideration to the level of non-compliance, the need to protect the reputation of Australia’s VET system, the honesty or otherwise of the applicants, the insight and readiness of applicants to correct failings and the opportunity to be afforded to them to perform at higher standards.[175] The Tribunal has taken all such matters into account.
[175] Brighton Pacific Pty Ltd and Australian Skills Quality Authority [2019] AATA 3645, [107].
The Applicants have been non-compliant for an extended period in relation to several of the Standards, nevertheless they have demonstrated some willingness to improve their systems and practices. Importantly, they do have available assessment tools which have been assessed to be compliant. The remaining step is for these assessment materials to be implemented in a compliant manner in relation to the RTOs’ students.
Taking into consideration the fact that Kirana has a large number of students still enrolled to whom the assessment tools and practices can be delivered, and that cancellation will displace a significant number of them, the Tribunal is not satisfied that the correct or preferable decision is to cancel Kirana’s registration. However, given these proceedings have revealed Kirana’s difficulty in documenting and providing evidence of its assessment systems and practices in a coherent manner for its current cohort of students, the Tribunal is satisfied that it is appropriate for the Applicant to be prevented from expanding the current size of its cohort and the scope of its registration.
On the other hand, whilst Access should notionally also be given an opportunity to improve its systems and practices, the pressing need to protect the interests of students in progressing through their courses and attaining their qualifications is entirely absent at this RTO. Although it has been found to be somewhat less non-compliant than Kirana, those non-compliances are nevertheless significant and the Tribunal is satisfied that the correct and preferable decision is to affirm the decisions to cancel its registration and reject its renewal application.
DECISIONS
In relation to each of the Applicants, the following findings and decisions are made:
Access Training Institute Pty Ltd – 2018/3222
Finding: Access is found to be non-compliant with clauses 1.8, 1.9, 1.11, 2.1 and 3.1 of the Standards.
Decision: The decision under review to cancel the Applicant’s NVR Act registration pursuant to section 39 of the Act is affirmed.
Access Training Institute Pty Ltd – 2018/2046
Finding: Access is found to be non-compliant with clauses 1.8, 1.9, 1.11, 2.1 and 3.1 of the Standards.
Decision: The decision under review to reject the Applicant’s application for renewal of its NVR Act registration pursuant to section 17 of the Act is affirmed.
Kirana Training Pty Ltd – 2018/3223
Finding: Kirana is found non-compliant with clauses 1.8, 1.9, 1.10, 1.11, 2.1 and 3.1 of the Standards.
Decision:
(a)The decision under review to cancel the Applicant’s NVR Act registration pursuant to section 39 of the Act is set aside, and
(b)In substitution the Applicant’s registration is reinstated subject to conditions made pursuant to section 29(1) of the NVR Act that the Applicant:
(i)does not enroll any new students (including re-enrolling former students who request gap assessment), and
(ii)does not apply to add any additional courses to its scope of registration until the end of its current period of registration.
I certify that the preceding 282 (two hundred and eighty-two) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
.................................[sgd].................................
Associate
Dated: 24 July 2020
Date(s) of hearing: 10 – 11 December 2019, 6 – 8 May 2020, 12 May 2020 Counsel for the Applicant: Mr D Nagle and Mr G Diggins Solicitors for the Applicant: United ACL Solicitors for the Respondent: Mr T Lloyd, Australian Skills Quality Authority
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