ACTA College Pty Ltd and Australian Skills Quality Authority
[2019] AATA 4250
•4 October 2019
ACTA College Pty Ltd and Australian Skills Quality Authority [2019] AATA 4250 (4 October 2019)
Division:GENERAL DIVISION
File Number(s): 2019/5678
Re:ACTA College Pty Ltd
APPLICANT
AndAustralian Skills Quality Authority
RESPONDENT
DECISION
Tribunal:Mr Rob Reitano, Member
Date:4 October 2019
Date of written reasons: 15 October 2019
Place:Sydney
For the reasons given orally at the conclusion of the hearing of this matter, the Respondent’s decision made on 28 August 2019 and notified to the Applicant on 4 September 2019 to reject the Applicant’s application of its registration as a registered training organisation is stayed.
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Mr Rob Reitano, Member
CATCHWORDS
PRACTICE AND PROCEDURE – application to stay decision – substantive proceedings concern renewal of RTO registration – principles relevant to the granting of a stay – interest of persons affected by review - prospects of success – public interest – strong evidence showing remedied non-compliance – stay application granted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 41(2), 41(3)
National Vocational Education and Training Regulator Act 2011 (Cth) ss 2A, 17
Standards for Registered Training Organisations 2015
CASES
Gurkhas Institute of Technology Pty Ltd trading as Royal Gurkhas Institute of Technology and Australian Skill Quality Authority [2017] AATA 1018
Re Scott and Australian Securities and Investments Commission [2009] AATA 798
Rust-Oleum Australia Pty Ltd v Australian Pesticides and Veterinary Medicines Authority [2017] AATA 298
REASONS FOR DECISION
Mr Rob Reitano, Member
15 October 2019
ACTA has requested the Tribunal to make an order staying the operation for implementation of the decision of Australian Skills Quality Authority (ASQA) on 28 August 2019 to reject ACTA College Pty Ltd (ACTA)’s application for renewal of its registration. The effect of the decision is to end ACTA’s registration as a training provider under the National Vocational Education and Training Regulator Act 2011 (Cth) (NVR Act), which registration would have continued but for the decision.
I have decided to make an order staying the decision and what follows are my reasons for doing so.
BACKGROUND
On 15 December 2018 ACTA applied to renew its registration under section 17 of the NVR Act. On 14 June 2019 a renewal of registration audit was conducted, which found that ACTA had failed to comply with clauses 1.1, 1.2, 1.3, 1.8, 3.1, 4.1 and 5.2 of the Standards for Registered Training Organisations 2015 (Standard). An audit report dated 10 July 2019 was prepared.
ASQA conducted a further audit and prepared a second report dated 23 August 2019. On 4 September 2019 ASQA notified ACTA that its registration would not be renewed with the effect that its registration would expire on 9 October 2019.
Since July 2019 ACTA has prepared an action plan, which has been designed to rectify the areas for which it was non-compliant. It has engaged three experts or consultants to assist it in the process of complying with the relevant requirements. This has included engaging Mr Tony Feagan, a former ASQA auditor, as a consultant to provide advice about rectifying non-compliances. He has assisted in preparing a submission to ASQA on 8 August 2019 addressing areas of non-compliance and presumably what it had done or was proposing to do to fix those non-compliances.
In a report prepared for this matter dated 30 September 2019, Mr Feagan sets out in some details the steps that have been taken to rectify the non-compliance since he has been engaged. Mr Feagan says in that report:
[10] The volume of reported information regarding assessments has decreased significantly in the August audit report indicating that the applicant (ACTA) addressed the majority of non-compliances which had earlier been identified. Whilst there are some issues outstanding, most of these are of an administrative nature including document formatting
[11] …All identified non-compliances have now been addressed and the RTO (ACTA) is compliant with the matters raised in the second report.[1]
[1] Exhibit 2 at [11].
ACTA says that it has spent about $41,000 in respect of the August audit and in consultancy fees. ACTA says it is committed to continue to rectify its compliance issues with a view to satisfying ASQA that it is compliant, so the matter would not need to go to final hearing. ACTA says it has remediated all sampled students except one who is presently overseas. It says it has advised all students of its non-compliance issues.
ACTA has about 135 students. It employs seven or eight full-time administrative employees and retains 10 full-time and part-time trainers. If an order staying the decision is not made it is likely that that all students will have to find alternative places to complete their studies and they will do so presumably with some difficulty, inconvenience, and delay in completing their courses. It is anticipated that in the absence of a stay all of the staff of ACTA will be dismissed. ACTA says it will suffer financial and reputational damage if a stay is not granted.
ISSUE
The issue is whether an order under subsection 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) should be made.
PRINCIPLES
The discretion to make an order staying the implementation or operation of a decision is engaged if the Tribunal is of the opinion that it is desirable to make such an order after taking into account the interests of any persons who might be affected by the review. It is only then that the Tribunal will make orders staying the decision or part of it as appropriate for the purpose of securing the effectiveness of the hearing and the determination of the review.[2]
[2] Subsection 41(2), Administrative Appeals Tribunal Act 1975 (Cth).
The interests of any persons who might be affected by the review require the identification of both the persons affected by the review as well as the interests of those persons.
The matters informing the desirability of making an order will usually include the applicant’s prospects of success, consequences to the applicant and to others in refusing a stay, the public interest, whether the application for review would be nugatory by refusing a stay, the length of time between the grant of a stay and any final hearing, and anything else that is relevant.[3]
[3] See generally the discussion of Downes J in Re Scott and Australian Securities and Investments Commission [2009] AATA 798 at [4].
These matters, which were first articulated by Downes J in Scott, are not to be assessed quantitatively or robotically without regard to other factors that Scott itself envisages maybe relevant may in some cases. The category of matters relevant to the desirability of granting a stay is not closed.
The content of the regulatory scheme is a fundamental element to the formation of the opinion as to the desirability of granting a stay. To this end the scheme and objects of the NVR Act are to be considered as important. In particular, the objects found in section 2A of the NVR Act are of significance. So too is the fact, as was pointed out by ACTA, that the scheme envisages an application for registration being made that will involve an assessment of issues of compliance with the Standard and as part of that very scheme a review before this Tribunal, which includes a power to grant a stay, of the implementation of a decision in circumstances where it was desirable.
The ultimate objective in deciding whether to grant a stay is to ascertain the desirability of making an order. The assessment of the desirability of making an order self-evidently involves the making of an evaluative judgment having regard to all facts. It is necessary to address some of them now.
THE PERSONS WHOSE INTERESTS MIGHT BE AFFECTED
The entities who are most directly to be affected by the review are ASQA and ACTA. ASQA’s interests as a regulator would not seriously be affected by a stay that is in place for a short time only.[4] There was some suggestion that there would be the need to divert resources to monitoring ACTA’s compliance if a stay were granted, but there was no development of the consequence to ASQA beyond that suggestion. There was no evidence about that matter.
[4] Gurkhas Institute of Technology Pty Ltd trading as Royal Gurkhas Institute of Technology and Australian Skill Quality Authority [2017] AATA 1018 at [48].
On the other hand, the likely damage to ACTA is of significance. I accept that some of the evidence of the exact reach of the economic damage is far from precise. There is an accountant’s letter dated 12 September 2019 that says that the accountant would recommend that ACTA go into voluntary administration should a stay not be granted.[5] The financial and business records in evidence are not complete, but nonetheless I think it is obvious that there will be significant financial damage to ACTA in its business activities. I think it fair to act on the footing that any economic loss to ACTA will not be insubstantial.
[5] Exhibit 1 Annexure MA-9.
The other people whose interests might be affected include the students, staff and trainers engaged by ACTA. One matter that weighs heavily on the effect that ASQA’s decision will have on students is interrupting them in their chosen courses and inevitably requiring them to find somewhere else to do and to complete their courses. This is to be balanced against the serious omissions identified by ASQA in its audits and the fact that it could hardly be desirable to have those students complete their studies at an institution that is non‑compliant with the Standard.
The Standard seeks amongst other things to ensure quality vocational education and training and specifically identifies the protection of students. The effect on students is however ameliorated by two factors. First, there is the report of Mr Feagan, which suggests in a strong and detailed way, that most of the concerns that have been raised have been addressed. Second, as I refer to later, there is the prospect of continued monitoring by ASQA that will provide it with the facility to have any stay order revoked or varied should the need arise. In that way the interests of students can be protected.
The effect on staff of ACTA is profound as they will most likely have their employment terminated. The trainers who are presently retained by ACTA will probably lose that work. There will be considerable inconvenience and disruption to people and their families and they are people who are not directly involved in this review.
ACTA’S PROSPECTS OF SUCCESS
Since the decision in Scott there has been some doubt cast upon the relevance of the applicant’s prospects of success[6]. If an application has no or even remote prospects of success there would be little that would be desirable about granting a stay.[7] If an applicant’s prospects of success are ineluctable there would be much to be said about granting a stay so as to avoid every possible adverse effect of an adverse decision.
[6] Rust-Oleum Australia Pty Ltd v Australian Pesticides and Veterinary Medicines Authority [2017] AATA 298 at [33] to [36].
[7] Gurkhas Institute of Technology Pty Ltd trading as Royal Gurkhas Institute of Technology and Australian Skill Quality Authority [2017] AATA 1018 at [28].
This application does not have no or poor prospects of success. There are three matters are relevant. The first is the suggestion that the decision was based although in small part on a mistake about some documents that were submitted. Second, the decision appears to have been taken at least in one instance based on a misunderstanding about the documents that had been requested. Third, and most importantly, there is a great deal of work that has been done since the audit disclosed the relevant non-compliances.
Whether this involves a ‘flurry of activity’ to become compliant or is ‘too little too late’ as ASQA suggested is really beside the point. The Tribunal’s task at a final hearing will be to determine at that time what the correct or preferable decision is. That decision will be informed by the circumstances that then exist, which will undoubtedly refer to and identify the rectification work that has been undertaken since the audits. No doubt Mr Feagan’s opinion and his reports will loom large in that equation and ASQA will have an opportunity, if it wishes, to test his opinion. As things stand ACTA has some prospects of succeeding at a final hearing.
PUBLIC INTEREST
I do not consider that there is any significant public interest consideration that favours or militates against the grant of a stay. This is especially true in circumstances where the matters giving rise to the decision have at least very arguably and for now been addressed.
It was perhaps not so rhetorically asked by ASQA in its submissions ‘would the Tribunal consider it safe for members of the public in potentially life and death situations to have first aid administered by the applicant’s graduates who have not had the benefit of appropriate assessment or competency?’. This fails to have regard to the evidence about the remediation that ACTA has undertaken as well as the steps taken by Mr Feagan on ACTA’s behalf to address the issues raised by the audits. In those circumstances it is difficult to understand that there would be any difficulty with a graduate of ACTA administering first aid.
ASQA submitted that there is some importance to be given to its authority as a regulator. It said that the potential to entrench a view amongst some in the VET sector that the regulators can be feasibly challenged and as a result lessens the impact of decisions and weakens an RTO’s commitment to ensuring the ongoing compliance at all times as is required by the registration. There is no evidence before me about the view that is taken in the VET sector and I would not be prepared to act without such evidence. Nonetheless I do consider the suggestion made by ASQA would be a relevant one if there was evidence about it, but it is not an overwhelmingly persuasive one in the circumstances of this case.
CONCLUSION
In all the circumstances I am persuaded to make a stay order because I consider that it is desirable to do so having regard to the interests of those who may be affected by the review, in particular having regard to the interests of ACTA, its staff and in particular its students.
I am fortified in my conclusion as to the desirability of granting a stay because of the report of Mr Feagan, which strongly suggests that ACTA is now compliant with the Standard. If I am wrong about that conclusion, or if ACTA does not maintain that compliance between now and a final hearing, the fact is that as ASQA has suggested it will continue to monitor ACTA’s compliance during that period and it has the facility to seek revocation of variation of the stay under section 41(3) of the AAT Act should it be appropriate do so.
I do not consider it necessary or desirable in the circumstances to impose any conditions on the stay given the findings I have made concerning ACTA’s current compliance with the standard.
For these reasons the Respondent’s decision made on 28 August 2019 to reject the Applicant’s application of its registration as a registered training organisation is stayed.
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Mr Rob Reitano, Member.
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Associate
Dated: 15 October 2019
Date(s) of hearing: 2 October 2019 Solicitors for the Applicant: Mr P Doukas, Denison Toyer Lawyers Solicitors for the Respondent: Ms L McDermott, Australian Skills Quality Authority
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