Australasian College of Education and Training Pty Ltd and Australian Skills Quality Authority - [2020] AATA 4806

Australasian College of Education and Training Pty Ltd and Australian Skills Quality Authority [2020] AATA 4806 (30 November 2020)
Division:GENERAL DIVISION
File Numbers: 2019/7990 & 2019/7991
Re:Australasian College of Education and Training Pty Ltd
APPLICANT

AndAustralian Skills Quality Authority
RESPONDENT

DECISION
Tribunal:Member K. Parker
Date:30 November 2020
Place:Melbourne

The Tribunal affirms the Decisions Under Review.
[sgd]........................................................................
Member K. Parker
Catchwords
VOCATIONAL EDUCATION AND TRAINING – cancellation of registered vocational education and training organisation (RTO) – refusal of application to change scope of registration – breach of conditions of registration under the National Vocational Education and Training Regulation Act 2011 (Cth) – non-compliance with Standards for Registered Training Organisations 2015 – instance of cheating during examination – inadequate supervision and other conduct of assessor which enabled student to cheat – inadequate assessment systems – assessment guides not adhered to when marking assessments – whether previous security course delivered over sufficient duration – RTO failed to identify student learning support needs and to provide support – RTO failed to ensure its executive officers and high managerial agents met “fit and proper person” requirements – executive officers and high managerial agents made false statements to ASQA and the Tribunal and failed to disclose close association with suspended RTO – current CEO previously found by Victorian Ombudsman to have assisted students at RMIT to cheat during two examinations in 2008 and 2009 – Victorian Ombudsman’s issued public report – lack of commitment by owner to fulfil current role of executive officer and high managerial agent – insufficient insight and contrition by former and current CEOs into past breaches of conditions of registration and non-compliance with Standards - demonstrated minimalist and reactive approach to compliance – Tribunal does not have confidence RTO will meet conditions of registration and comply with Standards in future – decisions under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), ss 37, 38AA, 62A
National Vocational Education and Training Regulation Act 2011 (Cth), ss 2A, 3, 17, 21, 22, 22A, 23, 24, 25, 26, 27, 28, 32, 33, 39, 55, 111, 155, 157,185, 186
Whistleblowers Protection Act 2001 (Vic), s 103
Legislative Instruments
Standards for Registered Training Organisations 2015
Cases
Australian Broadcasting Tribunal v Bond (1990)170 CLR 321
Brown and MARA, Re [2015] AATA 693
Claredale Academy Pty Ltd and Australian Skills Quality Authority, Re [2019] AATA 1869
Council of the NSW Bar Association v Franklin (No 2) [2014] NSWCA 428
Victorian Ombudsman’s Report
Brouwer, G E --- "Investigation into an allegation of improper conduct within RMIT's School of Engineering (Tafe) Aerospace (1.89MB)" [2010] VicOmbPRp 6 (1 July 2010) -
REASONS FOR DECISION
Member K. Parker
30 November 2020
INTRODUCTION

The Applicant, Australasian College of Education and Training Pty Ltd (ACET), is a “NVR registered training organisation”[1] (RTO) under the National Vocational Education and Training Regulation Act 2011 (Cth) (NVR Act) delivering vocational education and training (VET). ACET receives State-government funded subsidies to deliver its VET courses to domestic students in Victoria.
[1] Section 3 of the NVR Act provides that an “NVR registered training organisation means a training organisation that is registered by the National VET Regulator as a registered training organisation under this Act”. The National VET Regulator is defined in s 3 as meaning the body established by s 155 of the NVR Act (being the Australian Skills Quality Authority (ASQA) – see s 155(1A)).
The Respondent, Australian Skills Quality Authority (ASQA), is a Commonwealth statutory body responsible for regulating compliance by RTOs of their obligations under:
(a)the NVR Act;
(b)the VET Quality Framework; and
(c)as required by the statutory conditions of registration, as referred to below.[2]
[2] Refer s 55 of the NVR Act.
The VET Quality Framework comprises:[3]
(a)the Standards for NVR Registered Training Organisations (NVR RTO Standards);
(b)the Quality Standards;
(c)the Australian Qualifications Framework (AQF);
(d)the Fit and Proper Person Requirements (FPPR);
(e)the Financial Viability Risk Assessment Requirements (FVRAR); and
(f)the Data Provision Requirements (DPR).
[3] Refer s 3 of the NVR Act.
ASQA may grant registration under the NVR Act to a VET training organisation for a period not exceeding seven years, following which ASQA may renew an RTO’s registration. ASQA may suspend or cancel such registration or impose other sanctions on an RTO “in any circumstances” where ASQA “considers it appropriate to do so”. ASQA may also make decisions about the scope of registration of an RTO; that is, what courses it is permitted to deliver.
ACET was first registered as an RTO on 8 September 2005 by the Victorian Regulations and Qualifications Authority (VRQA). In 2011, this registration was transferred to ASQA. ACET’s current registration as an RTO under the NRV Act is due to expire in September 2022.
On 19 November 2019, ASQA gave notice to ACET that it had decided to:
(a)cancel ACET’s registration as an RTO due to alleged non-compliances with the VET Quality Framework and conditions of registration imposed on an RTO under the NVR Act (Cancellation Decision); and
(b)refuse to change ACET’s scope of registration to include the following security courses (Change of Scope Decision):
(i)CPP20218 Certificate II in Security Operations; and
(ii)CPP31318 Certificate III in Security Operations.
ACET seeks review of the Cancellation Decision and Change of Scope Decision (which the Tribunal will refer to collectively as the Decisions Under Review), by the General Division of the Administrative Appeals Tribunal (Tribunal).
ACET applied for a stay of the Decisions Under Review pending resolution of this application. An interim stay hearing took place on 16 December 2019 followed by a final stay hearing on 22 January 2020. The Tribunal granted both an interim and final stay of the Cancellation Decision on condition that ACET not enrol any new students. No stay was granted in relation to the Change of Scope Decision because an order to stay that decision would have had no practical effect.
Between 1 August 2011 and 21 January 2020, Mr Mahmoud Amarni, otherwise known as Mr Michael Amarni, held the position of CEO of ACET. Mr Amarni is the sole director and shareholder of ACET. On 21 January 2020, the day before the final stay hearing, Mr Amarni appointed ACET’s Training and Compliance Manager, Mr Nihal Hana, to become the new CEO of ACET. Mr Hana continues to hold the position of CEO of ACET.[4]
[4] As indicated on the signature block of an email sent by Mr Hana to the Tribunal on 5 November 2020.
ACET’s affidavits, expert reports and documentary evidence
ACET relies upon the following affidavit evidence which annexes most of its documentary evidence:
(a)Affidavit of Mr Amarni sworn 12 December 2019 (First Amarni Affidavit);
(b)Affidavit of Mr Amarni sworn 2 January 2020 (Second Amarni Affidavit);
(c)Affidavit of Mr Amarni sworn 20 January 2020 (Third Amarni Affidavit);
(d)Affidavit of Mr Hana sworn 12 December 2019 (First Hana Affidavit);
(e)Affidavit of Mr Hana sworn 2 January 2020 (Second Hana Affidavit);
(f)Affidavit of Mr Hana sworn 20 January 2020 (Third Hana Affidavit);
(g)Affidavit of Mr Hana sworn 20 March 2020 (Fourth Hana Affidavit);
(h)Affidavit of Mr Hana sworn 18 May 2020 (Fifth Hana Affidavit); and
(i)Affidavit of Mr Hana sworn 29 May 2020 (Sixth Hana Affidavit).
ACET engaged an RTO consultant, Ms Sally Tansley, to provide an opinion about the non-compliances as alleged by ASQA. An Affidavit sworn by Ms Tansley on 27 May 2020 was lodged with the Tribunal with two reports dated 20 March 2020 and 28 May 2020. Ms Tansley also appeared as an expert witness at the substantive hearing.
ASQA’s affidavits and documentary evidence
ASQA relied upon two affidavits lodged by an ASQA Lead Regulatory Officer, Mr Paul Bunce, who was involved in conducting the audit of ACET in February 2019:
(a)Affidavit of Mr Bunce sworn 13 January 2020 (First Bunce Affidavit); and
(b)Affidavit of Mr Bunce sworn 7 May 2020 (Second Bunce Affidavit).
At the hearing, ACET informed the Tribunal that it would not require Mr Bunce to be made available for cross-examination. He was not called as a witness at the substantive hearing.
The parties lodged statements of facts, issues and contentions (SFICs) and ASQA lodged an amended SFIC.
ASQA lodged two sets of documents in accordance with s 37 and s 38AA of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The Tribunal will refer to these sets of documents as the T-Documents and Supplementary T-Documents respectively.[5] Further evidence was lodged during and after the hearing (some at the request of the Tribunal).
[5] ASQA lodged the T-Documents totalling 123 pages with the Tribunal on 24 January 2020 and the Supplementary T-Documents totalling 7,883 pages on 20 May 2020.
The hearing of the substantive application took place by video-link over four days on 1, 2, 3 and 9 June 2020. The Tribunal acknowledges the assistance provided to the Tribunal by Ms R Sion, appearing as counsel for ACET, and Mr S Rebikoff, appearing as counsel for ASQA. The standard of their advocacy was exemplary; and helpfully, they each prepared comprehensive closing submissions which were lodged with the Tribunal sometime after the hearing.
For the reasons set out below, the Tribunal considers it appropriate in the circumstances for ACET’s registration as an RTO to be cancelled and that ACET’s application to change its scope of registration be refused. Accordingly, the Tribunal affirms the Decisions Under Review.
LEGISLATIVE FRAMEWORK
Objectives of the NVR Act
RTOs are currently regulated by ASQA under the NVR Act. All references made to section numbers in these Reasons for Decision are references to provisions of the NVR Act except where otherwise indicated.
The objectives of the NRV Act are set out in s 2A and provide as follows:
2A       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 standard-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
(e)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
(f)to protect students undertaking, or proposing to undertake, Australian VET by ensuring the provision of quality VET; and
(g)to facilitate access to accurate information relating to the quality of VET.
Note 1:The standards‑based quality framework mentioned in paragraph (b) consists of instruments made by the Ministerial Council, the Minister or the National VET Regulator.
Note 2:These objects are subject to the constitutional basis for this Act (see Division 3).
The legislated functions of ASQA are set out in s 157. ASQA is empowered, as the relevant VET regulator, to undertake enforcement action and to make decisions intended to promote and protect students and the general reputation of the VET sector, both nationally and internationally. ASQA’s function is to ensure that registered RTOs are operating in compliance with their obligations under the applicable legislative regime; and that they continue to meet the statutory conditions of registration.
Section 17 provides for the grant of registration by ASQA as follows:
Grant of application for registration
(1) The National VET Regulator may grant an application for registration.
(2)In deciding whether to grant an application, the National VET Regulator must consider whether the applicant complies with:
(a) the VET Quality Framework; and
(b)the applicable conditions of registration set out in Subdivision B of this Division.
Section 21 mandates that an RTO must comply with the conditions set out in ss 22 to 28. The importance of due compliance with those conditions is reflected in s 111, which renders contravention of the conditions set out in s 21, subject to civil penalties.
Conditions of registration
The conditions of registration potentially relevant in this application include:
(a)under s 22, that an RTO must comply with the NVR RTO Standards; Quality Standards; AQF and DPR. The NVR RTO Standards are defined as meaning standards made under s 185 by the Minister, by legislative instrument, and as agreed by the Ministerial Council. The Minister issued a standard under s 185(1) and s 186(1), entitled Standards for Registered Training Organisations (RTOs) 2015 (Standards);
(b)under s 22A, that an RTO must “demonstrate a commitment, and the capability, to deliver quality vocational education and training”;
(c)under s 23, that an RTO must satisfy the FPPR. Schedule 3 to Attachment A of the Standards contain the FPPR;[6]
(d)under s 24, that an RTO must satisfy the FVRAR;
(e)under s 25, that an RTO must notify ASQA of material changes to the organisation as prescribed in this provision;
(f)under s 26, that an RTO must give ASQA such information as ASQA requests, by notice in writing, for the purposes of this Act, so long as the organisation is capable of complying with the request; and
(g)under s 27, that an RTO must cooperate with ASQA, at least to the extent that it is necessary for ASQA to perform its functions or to facilitate ASQA’s performance of its functions.
[6] Refer Standard 7.
The structure of the Standards is also set out in Part 1- Preliminary, as follows (emphasis added):
Structure
These Standards consist of eight Standards. Under each Standard is a set of Clauses of the Standard.
To comply with a Standard, the RTO must meet each of the Clauses. A person applying to register as a new RTO must demonstrate the capacity to meet these Standards for all of the person’s intended scope of registration.
For each Standard a context statement is also included. The context does not form part of the Standard itself, and has been included to provide background information to help readers understand the Standard.
The Standards and Clauses are collectively referred to as Standards.
FPPR
Section 23 provides that an RTO must satisfy the FPPR. Standard 7 of the Standards requires that, “The RTO has effective governance and administration arrangements in place”.Clause 7.1 is relevant in this application and provides as follows:
To be compliant with Standard 7 the RTO must meet the following:
7.1 The RTO ensures that its executive officers or high managerial agent:
a) are vested with sufficient authority to ensure the RTO complies with the RTO Standards at all times; and
b) meet each of the relevant criteria specified in the Fit and Proper Person Requirements in Schedule 3.
…
Section 3 defines an “executive officer”, relevantly, as follows:
executive officer, in relation to a registered training organisation, means:
(a)a person, by whatever name called and whether or not a director of the organisation, who is concerned in, or takes part in, the management of the organisation; or
(b) if the organisation is a body corporate:
(i)a person who, at any time during a period for which the organisation is registered, owns 15% or more of the organisation; or
(ii)a person who, at any time during a period for which the organisation is registered, is entitled to receive 15% or more of dividends paid by the organisation; or
(c)…
Section 3 defines “high managerial agent” as follows:
high managerial agent of a registered training organisation means an employee or agent of the organisation with duties of such responsibility that his or her conduct may fairly be assumed to represent the organisation in relation to the business of providing courses.
The FPPR comprise Schedule 3 to the Standards, as reproduced below:
Fit and Proper Person Requirements
Criteria for suitability
In assessing whether a person meets the Fit and Proper Person Requirements, the VET Regulator will have regard to the following considerations:
(a) whether the person has been convicted of an offence against a law of the Commonwealth or a State or Territory of Australia, or of another country, and if so, the seriousness of the offence and the time elapsed since the conviction was recorded;
(b) whether the person has ever been an executive officer or high managerial agent of an RTO at a time that the RTO had its registration on the National Register cancelled or suspended by its VET Regulator for having breached a condition imposed on its Registration;
(c) whether the person has ever been an executive officer or high managerial agent of an RTO at a time that the RTO was determined to have breached a condition of its registration under the Education Services for Overseas Students Act 2000 or the Tertiary Education Quality and Standards Agency Act 2011;
(d) whether the person has ever become bankrupt, applied to take the benefit of a law for the benefit of bankrupt or insolvent debtors, compounded with his or her creditors or assigned his or her remuneration for the benefit of creditors, and if so, the time elapsed since this event occurred;
(e) whether the person has ever been disqualified from managing corporations under Part 2D.6 of the Corporations Act 2001, and if so, whether the disqualification remains in place;
(f)    whether the person was involved in the business of delivering courses or other services on behalf of a person that was the subject of regulatory action described in points b) or c) above, and if so, the relevance of the person’s involvement;
(g) whether the person has ever provided a VET Regulator with false or misleading information or made a false or misleading statement to a VET Regulator, and if so, whether it is reasonable to assume that the person knew that the statement made or information provided to the VET Regulator was false or misleading;
(h) whether the person has ever been determined not to be a fit and proper person as prescribed under any law of the Commonwealth or of a State or Territory of Australia, and if so, whether that determination remains in place;
(i)    whether the public is likely to have confidence in the person's suitability to be involved in an organisation that provides, assesses or issues nationally recognised qualifications;
(j)    whether the person has ever been an executive officer or high managerial agent of an RTO at a time that the RTO was determined to have breached a government training contract; and
(k)   any other relevant matter.
Power to cancel RTO registration
Section 39 provides that ASQA may cancel an RTO’s registration “in any circumstances that the Regulator considers it appropriate to do so”.
Power to grant (or refuse to grant) an application to change scope of registration
Under s 32, an RTO may apply to change its scope of registration in respect of the VET courses or units of courses that it delivers.
Section 33 provides as follows:
33 Change of scope of registration
(1)The National VET Regulator may grant an application for a change in the applicant’s scope of registration.
(2)In deciding whether to grant an application, the National VET Regulator must consider:
(a)the applicant’s ability to provide the VET course, or part of the VET course, in accordance with the VET Quality Framework; and
(b)the other VET courses, or parts of VET courses, offered by the applicant; and
(c) whether the applicant complies with:
(i) the VET Quality Framework; and
(ii)the other conditions of registration set out in Subdivision B of Division 1 of this Part.
ISSUES

In deciding this application, the Tribunal must consider whether it is appropriate to cancel the registration of ACET as an RTO; or to impose upon ACET any other sanction authorised under the NVR Act. The Tribunal will consider:
(a)whether ACET has failed to comply with the Standards, specifically:
(i)Clause 1.1 (read in conjunction with Clause 1.2);
(ii)Clause 1.7;
(iii)Clause 1.8 and Clause 3.1;
(iv)Clause 7.1 (incorporating a consideration of whether ACET has ensured its executive officers and high managerial agents meet the FPPR) and Clause 8.1; and
(b)any other relevant circumstances.
If the Tribunal sets aside or varies the Cancellation Decision, the Tribunal must also consider whether ACET’s application to change its scope of registration should be granted. If the Tribunal affirms the Cancellation Decision, it will necessarily follow that the Change of Scope Decision will be affirmed because ACET’s registration as an RTO will have ended.
BACKGROUND
In the First Amarni Affidavit, Mr Amarni stated (on 12 December 2019) as follows:
(a)since 2012, approximately 6,000 students had enrolled at ACET “and/or” completed about 6,800 qualifications;[7]
[7] Refer paragraph [2] on page 2 (not paragraph [2] on page 1) of the First Amarni Affidavit.
(b)initially ACET specialised in delivering training in security operations;[8]
[8] Ibid at paragraph [4] on page 2.
(c)since 2014, due to demand, ACET expanded its operations into other areas;[9]
[9] Ibid.
(d)ACET’s registration included approximately 15 courses across several industries including early childhood education, building and construction, security operations, beauty, make-up and hairdressing;[10]
[10] Ibid.
(e)ACET employs “approximately 45 highly-qualified administrative, student support, trainers and management staff”;[11]
[11] Refer paragraph [6] on page 2.
(f)ACET engages 24 trainers on a contract basis;[12]
[12] Ibid at paragraph [35].
(g)528 students were enrolled at ACET (as at 2 January 2020) and all of them had commenced their training in 2018 and 2019 and would continue courses already commenced, and a further 200 students would be commencing new courses;[13]
[13] Ibid at paragraph [7].
(h)ACET delivered training from four premises in Victoria based at Coburg, Coolaroo, Altona and Dandenong, and it hired other training facilities from time-to-time as required. ACET was approved to deliver the (now superseded) CPP20212 Certificate II in Security Operations and CPP30411 Certificate III in Security Operations (referred to collectively as Security Courses) from its four campuses;
(i)ACET also delivered the following further courses from its Coburg premises;[14]
(i)CHC30113 Certificate III in Early Childhood Education and Care;
(ii)CHC33015 Certificate III in Individual Support;
(iii)SHB30416 Certificate III in Hairdressing;
(iv)SHB30115 Certificate III in Beauty Services;
(v)SHB30215 Certificate III in Make-Up;
(vi)CPC40110 Certificate IV in Building and Construction (Building);
(vii)CHC43015 Certificate IV in Ageing Support; and
(viii)CHC50113 Diploma of Early Childhood Education and Care.
[14] Ibid at paragraph [16] to [25] inclusive, stating the position as at 2 January 2020. When Mr Hana gave evidence at the substantive hearing, he told the Tribunal that he had arranged to close some of ACET’s campuses due to the reduction in revenue on account of the stay condition prohibiting ACET from enrolling new students.
ACET reported total revenue for the 2018/2019 financial year of about $4.8m.[15] Reportedly, this was a substantial reduction in revenue from the two previous financial years. ACET’s total revenue was reported as being about $6.4m for the 2017/2018 financial year; and about $6.85m for the 2016/2017 financial year.[16]
[15] Refer ACET’s Financial Report for year ended 30 June 2018 forming part of Exhibit “MA-6” of the Second Amarni Affidavit.
[16] Ibid.
A large proportion of ACET’s turnover was previously generated from the delivery of the Security Courses. The Security Courses have now been superseded by the following (non-equivalent) courses:[17]
(a)CPP20218 Certificate II in Security Operations; and
(b)CPP31318 Certificate III in Security Operations;
(which the Tribunal will refer to collectively as the New Security Courses).
[17] At the Certificate II-level, the unit structure has changed from a combination of five core units and nine elective units in the Security Courses; to 14 core units in the New Security Course. While there is significant overlap in the content of the courses, they are stated to be “non-equivalent”. There are some new units in the New Security Courses which did not exist previously.
The “teach out” period for the Security Courses expired on 1 July 2020.
The replacement of the Security Courses by the New Security Courses prompted an application by ACET to ASQA to add the New Security Courses to its scope of registration.
On 12 December 2020 (four days before the interim stay hearing), Mr Amarni stated in the First Amarni Affidavit that:
In the 2028(sic)-2019 financial year, ACET paid wages of $4,652,530.77 to staff, comprised of:
j. Administrative staff (two in each campus): $398,200; and
k. Trainers, Consultants, marketers and other professionals $4,494,237.57.
The 2018/2019 ACET Financial Report subsequently produced by ACET records that ACET’s total expenditure for the 2018/2019 financial year was $4,780,299.96,[18] of which $2,462,353.18 was expenditure for “Personnel Expenses” as itemised in Note 7:[19]
Note 7: PERSONNEL EXPENSES
Professional Fees  $2,304.059.98
Salaries – Support Staff  $108,160.00
Salaries – Teachers       $36,400.00
Superannuation Expense  $13,733.20
[18] Refer page 4 of 2018/2019 ACET Financial Statement in Exhibit “MA-6” of the Second Amarni Affidavit.
[19] Ibid at page 6.
In the affidavits sworn by Mr Amarni, he:
(a)attached a copy of Mr Hana’s former contract with ACET for the provision of services as an independent contractor in the role of “Training and Compliance Manager”. This contract was signed by Mr Hana and Mr Amarni and commenced on 1 April 2014. The contract describes Mr Hana’s position as having responsibility for “ensuring the college meet out (sic) regulatory requirements with ASQA, State Licensing bodies and the VET Funding contract”;[20]
(b)attached a copy of the previous contract of employment between Mr Amarni and ACET (signed by ACET’s “authorised officer” as at 14 July 2011, Mr Bryan McFarlane), in respect of Mr Amarni’s former position of CEO of ACET. The contract commenced on 1 August 2011;[21]
(c)stated that Mr Amarni was paid a salary of $22,000 per month by ACET and details were provided at Exhibit “MA-11”. The “payee” of those wages is described as “Wholesale Plus Australia Pty Ltd”. On a company search produced to the Tribunal, Wholesale Plus Australia Pty Ltd is registered as a company wholly owned and controlled by Mr Amarni;
(d)exhibited several testimonials (drafted in similar terms) about ACET’s operations, including testimonials from:[22]
(i)OSGA Pty Ltd, indicating that it had offered employment opportunities to ACET’s graduates since 22 October 2018 and had engaged ACET to deliver courses to OSGA’s employees. OSGA stated it was “very pleased” to continue its industry partnership with ACET;
(ii)Bright Sun Family Day Care Pty Ltd, indicating that it had the confidence to offer ACET’s graduates employment opportunities and had done so;
(iii)Allouche Property Group, stating that it had used ACET to deliver courses to its employees to upskill them; and
(iv)Citibuild Design Group Pty Ltd, stating that it had provided ACET’s graduates with opportunities to enter the workforce as site supervisors and coordinators.
[20] Refer Exhibit “MA-10” of the Second Amarni Affidavit.
[21] Ibid.
[22] Refer Exhibit “MA-16” of the Third Amarni Affidavit.
The Tribunal granted ACET a stay pending the determination of this application on condition that that ACET not enrol any new students.
ASQA Audit – February 2019
On 7 December 2018, ASQA gave advance notice to ACET that it would conduct an audit of its operations to assess its compliance with the NVR Act (including the requirements under the Standards), on 5, 6 and 7 February 2019 (Audit).[23] The Audit was conducted by Ms Roslyn Braid, Lead Regulatory Officer, ASQA, assisted by Mr Bunce.
[23] Refer T-Documents at page 13.
On 20 December 2018, ACET provided to ASQA a completed Delivery Data Summary Sheet recording that it delivered face-to-face training across the four ACET locations as follows:[24]
[24] Refer T-Documents at page 18.
(a)CHC33015 Certificate III in Individual Support with 106 current enrolments and 40 AQF qualifications issued in the previous 12 months;
(b)CHC43015 Certificate IV in Ageing Support with 39 current enrolments and 0 AQF qualifications issued in the previous 12 months;
(c)CHC50113 Diploma of Early Childhood Education and Care with 9 enrolments and 516 AQF qualifications issued in the previous 12 months;
(d)CPC40110 Certificate IV in Building and Construction (Building) with 10 enrolments and 37 AQF qualifications issued in the previous 12 months;
(e)CPC50210 Diploma in Building and Construction (Building) with 171 enrolments and 1 AQF qualification issued in the previous 12 months;
(f)CPP20212 Certificate II in Security Operations with 30 current enrolments and 360 AQF qualifications issued in the previous 12 months;
(g)CPP30411 Certificate III in Security Operations with 0 current enrolments and 233 AQF qualifications issued in the previous 12 months;
(h)SHB30416 Certificate III in Hairdressing with 28 current enrolments and 30 AQF qualifications issued in the previous 12 months; and
(i)CHC30113 Certificate III in Early Childhood Education and Care with 0 current enrolments and 2 AQF qualifications issued in the previous 12 months;
(j)(single course unit) HLTAID003 Provide First Aid with 0 enrolments and 6 AQF statements of attainment issued in the previous 12 months.
Ahead of the Audit, ACET was advised in writing on 17 January 2019 by ASQA:
(a)that its Coburg site (in Victoria) would be audited;
(b)which “regulatory obligations” would be audited (by providing the standard numbers); and
(c)which training products would be audited (by citing the name of the qualification).[25]
[25] Refer T-Documents at page 21.
Mr Amarni advised ASQA he would be in Sydney at the time of the Audit and that he had authorised Mr Hana (the then Training and Compliance Manager) to represent ACET during the Audit.[26]
[26] Refer T-Documents at page 39.
Information was requested by ASQA ahead of the Audit.[27] On the due date (i.e. 25 January 2019), Mr Hana on behalf of ACET provided the requested information.[28]
[27] Refer T-Documents at page 22.
[28] Refer T-Documents at page 23.
On 29 and 30 January 2019 Mr Hana provided further information regarding the qualifications, training/assessment and vocational competence, and the industry currency of ACET’s trainers and assessors.
An Audit file note prepared by the ASQA auditors was produced to the Tribunal, recording that:[29]
(a)a student complaint made to ASQA during each of the 2017 and 2018 calendar years, was not recorded in ACET’s complaints register for those years;
(b)after a concern had been raised that ACET’s website did not specify the course code for the courses offered, Mr Hana informed the auditors that ACET had changed its website to include the codes;
(c)when a concern was raised by ASQA about a banner on ACET’s website which diverted the reader to an ACET payment plan, and also offered an opportunity to prospective students to apply for finance through Zip Money and provided them with a link, Mr Hana informed the auditors that ACET had changed its website to remove the Zip Money banner, related links and ACET payment plan page;
(d)when a concern was raised by ASQA about the omission of course codes on course names appearing on the windows of ACET’s Coburg premises, Mr Hana refuted that this constituted “marketing materials”. He considered it to be information of a general nature only and as such, refuted that unit codes needed to be included;
(e)Mr Hana told the auditors there was no relationship between ACET and Trison Business College (Trison) beyond that of being a “neighbour” (as Trison occupied premises next door to ACET’s Coburg premises). The reason for ASQA’s questions to ACET about Trison at that time was that there was a pending ASQA investigation into Trison’s operations as an RTO (through the entity, Accredited Learning Centre of Australia Pty Ltd (ALCA)), which ultimately led to a decision on 15 May 2019 by ASQA to suspend and not to renew ALCA’s registration under the NVR Act. When Mr Hana was asked to explain why Trison occupied premises in Queensland previously occupied by ACET, reportedly Mr Hana was unable to offer an explanation and described this as “a coincidence”;[30]
(f)Mr Hana confirmed that Mr Brian McFarlane was a former director of ACET and that he had left ACET to relocate to Queensland. Mr Hana told the auditors that Mr McFarlane had left “a couple of years ago”, but that he was “not sure about that”; and
(g)ACET’s Register of Industry Stakeholders was not presented to the auditors at the Audit when requested by ASQA.[31]
[29] Refer T-Documents at pages 41 to 44.
[30] Refer T-Documents at page 41.
[31] Refer T-Documents at page 44.
Notice of intention to cancel registration – June 2019
On 24 June 2019 ASQA gave notice to ACET that the auditors had made findings of non-compliance with the Standards in certain areas; and of ASQA’s intention to cancel ACET’s registration under the NVR Act and/or to impose a sanction of lesser severity.[32] ASQA invited ACET to respond to ASQA’s stated concerns.
[32] Refer T-Documents at pages 46 to 48.
ACET’s initial response to concerns raised by ASQA – July 2019
ACET provided a written response to ASQA on 22 July 2019 (Audit Response) which was signed by Mr Amarni on 22 July 2019 (who was the CEO of ACET at that time).[33] The Audit Response sought to address each of the auditors’ findings of non-compliance.
[33] Refer T-Documents at pages 51 to 77.
On the first page of the Audit Response, the following general response was made by ACET:[34]
…
Furthermore, we would like to bring your attention to the fact that there have been incorrect and misinterpretations throughout the audit. ACET has rectified that non-compliance with respect to Standards 4.1, 5.1, and has supplied the benchmarks for SHCEC005 Provide Care for Babies & Toddlers which include the details for washing hands. We have set out why the findings of non-compliance in respect to the remaining Standards named in the audit report are incorrect.
It is the submission of ACET that there are no grounds that warrant ASQA cancelling the registration of ACET or imposing a sanction of lesser severity. In most cases the findings by the auditors of non-compliance were incorrect findings. Where the findings were correct, the non-compliances have been remedied.
[34] Refer T-Documents at page 51.
In the Audit Response, ACET stated that there was “no legal relationship” between it and Trison and that those companies had different directors, CEOs and shareholders. ACET stated that the only arrangement between the two colleges was that ACET had stored a number of boxes at Trison “since the water damage it sustained in its Coburg and Dandenong Facilities in January 2019”. ACET stated that it had never stored Trison’s boxes or documents in its premises prior to January 2019. ACET also stated, “The fact that an independent contractor, being a casual security trainer, works for both colleges does not establish a relationship between them”.[35] The Tribunal notes that this fact was not previously disclosed by Mr Hana to the ASQA auditors during the Audit. ACET said that there was never a leasing or subleasing arrangement between ACET and Trison.
[35] Refer T-Documents at page 23.
Further, in the Audit Response, ACET stated (emphasis added):[36]
[Mr Hana] of ACET is not the Training and Compliance Manager of Trison. If a Trison employee made such as (sic) a statement to the auditor; then, that statement was incorrect. [Mr Hana] has provided consultancy services to Trison but is not an employee of the RTO.
ASQA decided to cancel ACET’s registration and to refuse its change of scope application – November 2019
[36] Refer T-Documents at page 27.
On 19 November 2019 ASQA gave written notice of the Cancellation Decision and Change of Scope Decision to ACET, citing the following reason:[37]
[ACET] has failed to demonstrate that it provides quality training appropriate to meet Australia’s social and economic needs for a highly educated and skilled population in accordance with NVR Act section 2A.
[37] Refer T-Documents at pages 5 to 9 in relation to ASQA’s intention to cancel ACET’s registration and pages 11 to 17 in relation to ASQA’s rejection of ACET’s application to change its scope of registration.
The Cancellation Decision was based on an ASQA audit report (created by ASQA on 14 February 2019 and updated on 30 September 2019) (Audit Report), on the basis that ACET remained non-compliant with Clauses 1.1, 1.2, 1.3, 1.7, 1.8, 1.13, 3.1, 5.1, 7.1 and 8.1 of the Standards.[38]
[38] Refer T-Documents at page 80.
As indicated in the Audit Report, the auditors made an overall audit finding, following analysis of the additional evidence provided to ASQA on 22 July 2019, of “critical non-compliance”.[39] The Audit Report recorded that ACET had managed to rectify seven alleged non-compliances (initially identified by ASQA during the Audit); namely, non-compliance with Clauses 1.16, 2.3, 2.4, 4.1, 5.2, 8.2 and 8.3.[40] Further, between the time of the Decisions Under Review and the hearing of this application ACET had rectified, to ASQA’s satisfaction, alleged non-compliances with Clauses 1.3, 1.13 and 5.1.
[39] Refer T-Documents at page 81.
[40] Refer T-Documents at page 86.
ACET sought review of ASQA’s decisions – December 2019
On 5 December 2019, ACET lodged its application for review of the Cancellation Decision and the Change of Scope Decision with this Tribunal.
Notification of change of CEO of ACET – January 2020
At the interim stay hearing on 16 December 2019, Mr Amarni was the CEO of ACET, and the deponent of the affidavit material lodged in support of the stay application. Mr Amarni was contacted by telephone and asked several questions by the Tribunal about the day-to-day operations of ACET to gauge the likely impact on ACET, if the requested stay orders were not made. Mr Amarni was either unable to, or struggled to, answer those questions without seeking to defer to Mr Hana. It became evident to the Tribunal from this exchange that Mr Hana, and not Mr Amarni, managed the day-to-day operations of ACET.
On the day before the final stay hearing, ACET lodged a “notice of material change or event” with ASQA advising, in effect, that it had changed its CEO from Mr Amarni to Mr Hana.
In the Fourth Hana Affidavit (sworn on 20 March 2020), Mr Hana exhibited an employment contract indicating that it was executed on 21 January 2020 between ACET and Mr Hana employing Mr Hana on a full-time basis as the CEO of ACET, with immediate effect.
Mr Hana is neither a director nor shareholder of ACET.
CONSIDERATION
In reviewing the Cancellation Decision, the Tribunal will commence with a consideration of whether ACET has failed to comply with the Standards, as alleged by ASQA.
The stated purposes of the Standards are as follows:[41]
Purpose
The purpose of these Standards is to:
1.set out the requirements that an organisation must meet in order to be an RTO;
2.ensure that training products delivered by RTOs meet the requirements of training packages or VET accredited courses, and have integrity for employment and further study; and
3.ensure RTOs operate ethically with due consideration of learners’ and enterprises’ needs.
[41] See Part 1 of the Standards.

“Training Package” is defined in the Standards as follows:
Training Package means the components of a training package endorsed by the Industry and Skills Council or its delegate in accordance with the Standards for Training Packages. The endorsed components of a Training Package are: units of competency; assessment requirements (associated with each unit of competency); qualifications; and credit arrangements. The endorsed components form part of the requirements that an RTO must meet under these Standards. A training package also consists of a non-endorsed, quality assured companion volume/s which contains industry advice to RTOs on different aspects of implementation.
Ms Tansley’s evidence in general
The Tribunal considers that Ms Tansley, particularly in her reports, focussed unduly on discrediting Mr Bunce’s findings, rather than on addressing the issues raised by ASQA directly and providing reasons why the Tribunal should not find that ACET has been non-compliant in the areas specified in the Audit Report.
During the hearing, the Tribunal required Mr Hana to produce all the communications that had taken place between him and Ms Tansley. The Tribunal considers that it was evident from those communications that the dealings between Mr Hana and Ms Tansley had compromised the independence of Ms Tansley as an expert witness.
Those emails revealed that before finalising her expert report, Ms Tansley checked in with Mr Hana to see if he was “happy with” the draft report. Subsequently, Ms Tansley’s report was altered. Ms Tansley’s watered down her opinion about whether the duration of the security course had been sufficient. In her draft report, Ms Tansley made an earlier positive statement to the effect that three weeks was insufficient, and then after consulting with Mr Hana, changed it to a less definitive statement in her final report, to the effect that it was open to ASQA to find as such.
This was put to Ms Tansley at the hearing and she maintained that she was not unduly influenced by her interactions with Mr Hana in preparing her report. The Tribunal does not accept Ms Tansley’s evidence about this. The Tribunal considers that while Ms Tansley may have endeavoured to maintain a balanced position in respect of forming opinions about the alleged non-compliances, this did not come through when preparing her report. As mentioned, the effects of this influence were apparent when comparing her draft report to her final report following the consultation she had with Mr Hana.
Clauses 1.1 and 1.2
ASQA alleges that ACET is non-compliant with Clause 1.1, read in conjunction with Clause 1.2. Those clauses impose the following requirements on RTOs:
1.1.The RTO’s training and assessment strategies and practices, including the amount of training they provide, are consistent with the requirements of training packages and VET accredited courses and enable each learner to meet the requirements for each unit of competency or module in which they are enrolled.
1.2.For the purposes of Clause 1.1, the RTO determines the amount of training they provide to each learner with regard to:
a) the existing skills, knowledge and the experience of the learner;
b) the mode of delivery; and
c)where a full qualification is not being delivered, the number of units and/or modules being delivered as a proportion of the full qualification.
ASQA contends that ACET was non-compliant with Clause 1.1 because its training and assessment strategies and practices, including the amount of training provided to learners, were not consistent with the relevant training packages. ASQA also contends that ACET’s documented training and assessment strategies were not consistent with the practices of the organisation.[42] ASQA contends that ACET did not demonstrate that the amount of training actually provided to students enrolled in CPP20212 Certificate II in Security Operations or CPP30411 Certificate III in Security Operations was sufficient to enable the learner to meet all requirements of the training package and each unit of competency. ASQA also considered that ACET had not considered the existing skills, knowledge and experience of learners.[43]
[42] Refer Second Bunce Affidavit at paragraph [25].
[43] Ibid at paragraph [26].
At the substantive hearing, a key focus of ASQA’s concerns related to ACET having delivered the previous CPP20212 Certificate II in Security Operations course over a duration of 17 days (full-time) or 34 days (part-time). ASQA contends this course duration was insufficient and did not align with the “volume of learning” as recommended under the Australian Qualifications Framework (AQF).
The Tribunal notes that AQSA provides the following guidance to RTO’s on its website about the volume of learning for VET courses (emphasis added):[44]
[44] Refer of learning
The AQF defines the volume of learning as ‘a dimension of the complexity of a qualification. It is used with the level criteria and qualification type descriptor to determine the depth and breadth of the learning outcomes of a qualification. The volume of learning identifies the notional duration of all activities required for achievement of the learning outcomes specified for a particular AQF qualification type. It is expressed in equivalent full-time years.’
The AQF volume of learning is part of the complexity requirements of a qualification. The AQF provides a guide to the volume of learning which describes how long a learner who does not hold any of the competencies identified in the relevant units of competency would take to develop all the required skills and knowledge.
The AQF specifies the volume of learning in years. The conversion to hours is shown in Table 7.
RTOs are required to comply with the AQF in applying the volume of learning to programs and must develop and implement strategies for training and assessment that are consistent with the AQF.
The volume of learning identifies the notional duration of all activities required to achieve the learning outcomes of the course, including all teaching and learning activities such as guided learning (classes, lectures, tutorials, online or self-paced study), individual study, research, learning activities in the workplace and assessment activities.
You can calculate the volume of learning as follows:
nominal (supervised) hours + unsupervised hours = volume of learning
Nominal (supervised) hours represent the supervised structured learning and assessment activity required to sufficiently address the content of each unit (acknowledging that progress can vary between learners). Nominal (supervised) hours are assigned to learning and assessment activities that are delivered via face-to-face, online and/or structured distance education. Unsupervised hours represent activities that contribute to achieving the course outcomes that are not supervised by an RTO trainer or assessor. These may include activities such as non-supervised work experience, field placement, private study and/or assignment work.
The footnote appearing in paragraph [38.3] of ASQA’s Closing Submissions referred to page 14 of the AQF, which provides as follows in relation to Certificate II-level courses (emphasis added):
The volume of learning of a Certificate II is typically 0.5 – 1 year.
In Table 7 of the AQF, which is headed “Conversion of Australian Qualifications Framework volume of learning to hours”, the volume of learning expressed as course duration for a Certificate II-level qualification of “0.5 – 1 years”, was converted (in the same table) to “600 - 1200 hours”.
Under cross-examination at the substantive hearing, Mr Hana gave evidence that the rationale for why ACET had shortened the duration of the course, from the duration referred to in the AQF, was three-fold:[45]
(a)industry consultation;
(b)the fact that the level of qualifications fell at the lower end; and
(c)the commonality of the units justified them being taught in clusters and therefore, delivered within a shorter duration.
[45] Refer transcript of substantive hearing (Transcript) at P-37 to P-41.
First rationale – industry consultation
In respect of sub-paragraph [76‎(a)], Mr Hana gave evidence that he had:[46]
(a)attended meetings with the Licensing and Regulation Division of Victoria Police (LRD) regarding the duration of the security course;
(b)met with representatives of two major Australian security companies, Bluestone and Secom; and
(c)received regular updates from Skilled Trainers Associations, LRD and Security Trainers Association (STA), about the negotiations between ASQA and LRD as to the duration of the Certificate II-level security operations course and specifically, that it had been concluded that the Certificate II-level course could be delivered face-to-face by the provision of 130 hours of training.
[46] Refer Transcript at P-175.
ACET produced a letter from Ms Sarah Cracknell, Senior Sergeant, Regulation Support Unit of LRD, to ACET dated 16 December 2019, stating that (emphasis added):
The Licensing and Regulation Division wrote to you on 14 November regarding recommended changes to the minimum face-to-face training hours for Certificate II Security Operations. This recommendation was made in consultation with Security Training Association (STA) and their members, Registered Training Organisations and Victoria Police and follows changes to the training package made by ARTIBUS.
The Licensing and Regulation Division, along with other state regulators believe that these amendments ensure a national approach and consistency that will benefit the industry. As a part of this agreement the recommended minimum auditable hours of face-to-face training requirements for Certificate II in Security Operations changes from 128 to 130 hours and will come into effect on 20 January 2020.
…
At the hearing, Ms Sion submitted that the Fifth Hana Affidavit had addressed the allegation by ASQA that ACET had not complied with Clauses 1.1 and 1.2; and in particular Exhibit “NH-05” to this affidavit had set out the names of about one dozen RTOs that offered the course in 30 days or less.[47] ACET’s position on this issue was further summarised in ACET’s Closing Submissions (footnotes omitted):
55. Notwithstanding the concerns expressed by Mr Bunce about the short timeframe, and his contention that the course ‘has a typical duration of 6-12 months…’, ASQA has not identified a single instance of a registered training organisation in Australia that delivers the course in 6-12 months. In contrast to the ‘typical duration’ referred to by Mr Bunce, Ms Tansley’s evidence was that she had personal knowledge - from her auditing career and having seen it on training.gov or CRICOS - that numerous RTOs were approved to offer the course in the same duration as ACET.
56. The total training hours for CPP20212 is a source of much industry debate and in the absence of a clear and consistent approach from ASQA, ACET’s rationale to support the amount of training, in conjunction with its own industry consultation, should be accepted as compliant.
[47] Refer Transcript at P-6.
ASQA did not dispute the assertion by ACET that other RTOs delivered Certificate II-level courses in security operations in a shorter duration than the time frames referred to in Table 7 of the AQF, or that those consultations with industry stakeholders and Victoria Police had taken place about the minimum number of training hours for the Certificate II-level course being set at 130 hours, and the Tribunal finds accordingly.
Mr Hana claimed that if the security course was required to be delivered over a minimum of six months, ACET would expect to see a smaller number of enrolments. He claimed that it would cause enrolments to “drop by a lot”. He suggested that if this occurred, there would be “a big problem in the industry out there”. Mr Hana proclaimed that he would be “more than happy” for ACET to deliver the security course over a six-month period, provided that the same requirement was imposed on “every other RTO”.
ACET’s expert witness, Ms Tansley, acknowledged that the “volume of learning” for the Certificate II-level security operations course was between 600 and 1,200 hours. Based on this, Ms Tansley considered that delivering the course over a period of three weeks was insufficient. However, Ms Tansley echoed Mr Hana’s concerns for the need for parity for all RTOs offering this course, and commented as follows in her final report:
ASQA could be deemed correct when taking this finding only in the context of the amount of training and volume of learning. However, the issues need to be considered. What’s also important to note is the inconsistency. Therefore in this sense the finding non-compliance is not correct or justified.
Under cross-examination, Ms Tansley stated:
But I think there are really complex issues here because of the state regulators and the hours that they deem it, I think because of industry needs, and this one is one that I believe – and have spoken to, you know, various people, including regulators over the year, that I think it needs a strong position on this one, because it’s really difficult for RTOs when some, you know, are allowed to deliver it in three weeks and have been approved, and others aren’t, it makes it really difficult. But no, I don’t think three weeks is sufficient.
ASQA did not accept ACET’s first rationale for why it delivered the Certificate II-level course in 17 days (full-time), and submitted as follows (footnotes omitted):[48]
[48] Refer ASQA’s Closing Submissions
38.1. In relation to industry consultation, the letters provided by ACET do not address the issue of whether the course duration is sufficient to enable the students to absorb, practice and apply the skills and knowledge they have learned but are simply (pro forma) confirmations that consultation has occurred.
38.2. Further, in cross-examination Mr Hana accepted that the minimum hours specified by Victoria Police could be spread out over a longer timeframe and that Victoria Police had expressly left it to ASQA to oversee the timing of delivery.
38.3. In relation to the entry-level nature of the qualifications, ACET’s position fails to grapple with the fact that, even at the lower end of the spectrum, the AQF expressly specifies that the volume of learning for a Certificate II is “typically 6-12 months” (indeed, in cross-examination, Mr Hana did not appear to be aware of this). Accordingly, the placement of the qualification within the AQF actually supports a longer rather than a shorter duration.
38.4. That is particularly so as the courses taught by ACET actually comprise a large number of units in addition to the 12 or 14 units required to make up the Certificate II course (as Mr Hana explained, the course also includes additional units required for students to be eligible to be licensed as a security guard and unarmed crowd controller);
…
38.6. Further, the issues associated with the lack of time to absorb and apply skills are particularly acute with a high-risk cohort like that enrolled at ACET, which Mr Hana indicated was predominantly composed of students who have English as a second language.
The Tribunal acknowledges that this issue is not straightforward because ACET adopted a similar approach as many other RTOs which have delivered the CPP20212 Certificate II in Security Operations course in a duration of less than one month. It was not disputed by ASQA, and the Tribunal accepts, that there seems to be a high industry-based demand for learners to be able to attain the Level II-Certificate qualification in a relatively short space of time. This is purportedly due to a high industry demand for security personnel. The Tribunal considers that, to a certain extent, it is appropriate for an RTO to factor matters such as the expectations and needs of industry and the learners into its decision-making process when deciding upon the volume of learning and course durations for each of its courses.
However, the Tribunal considers that this should not detract from an RTO’s responsibility to undertake its own independent assessment as to what course duration is sufficient for each of its courses. The Tribunal considers that an RTO should undertake this assessment by considering the matters referred to in the above paragraph, but also by considering additional important factors, such as whether the nominated course duration will allow sufficient time for each unit of study to be taught effectively to its students, and ensuring adequate unsupervised study time is allocated so students may properly reflect upon and absorb what has been taught to them. The volume of learning guidance provided for in the AQF, and any minimum number of training hours that might be set by industry stakeholders or the LRD, will serve as a good starting point. But it remains incumbent on the RTO to decide for itself what will be a sufficient duration over which it can meet the specific training requirements as set out in the corresponding training package for that course.
The Tribunal considers that if an RTO places a disproportionate reliance on the duration of a course based on the practices adopted by other RTOs, which the Tribunal considers ACET has done in this case, it may lead an RTO into error. Notably, Mr Hana was not aware of the time frames referred to in the AQF for Certificate II-level qualifications until this was brought to his attention at the hearing. The Tribunal finds that the suggested time frames of “typically 0.5 to 1 year” in the AQF, were not factored into the decision by Mr Hana and consequently ACET, to deliver the course in 17 days full-time or 34 days part-time. The Tribunal finds that ACET’s approach was simplistic and based almost entirely on what its competitors had decided was an appropriate course duration for the CP20212 course; and it did not involve an independent assessment against the requirements of the training package.
The critical importance of security personnel being properly trained and skilled to act responsibly and with due diligence and care when undertaking security-related roles within the Australian community, is self-evident. This accentuates the need for RTOs to base any decisions about course duration on a much broader range of considerations, necessarily involving a detailed analysis of whether all requirements of the training package can be effectively covered within the course duration ultimately decided upon by the RTO. The Tribunal finds that ACET did not do so when deciding upon the course duration for the Security Courses previously delivered by it.
In the Victoria Police letter referred to in paragraph [78], the Tribunal notes that there was no recommendation made as to the duration over which the recommended 130 hours of face-to-face training in security operations should be delivered to students. Mr Hana accepted this at the hearing. If 130 hours of training is delivered across 17 training days, each day of training would comprise 7.6 hours of training.
The Tribunal has considered the requirements of the training package in respect of the units of competency for this course. By seeking to deliver this course over 17 business days full-time or 34 days part-time, ACET was necessarily required to adopt an intense training schedule, even with clustering, with very few breaks in the face-to-face learning sessions being provided to allow students to go over and absorb what they had been taught in the course. ACET’s expert, Ms Tansley, considered that three weeks was an insufficient period to deliver the security course.[49]
[49] Training that takes place for 17 business days would extend for a period of just over three weeks.
Even if one is to accept that the total number of hours of face-to-face training as recommended by Victoria Police, i.e. 130 hours, is sufficient, the course duration over which those 130 hours of training should be delivered, still needs to be assessed on the basis that the program should incorporate supervised and unsupervised study time and learning, to allow an opportunity for what is being taught to be properly considered and absorbed by the learners. This is particularly so for those who have English as a second language, as was the case for many ACET students. The Tribunal accepts that it was justified for ACET to diverge from the six to 12 month “typical” course duration as referred to in the AQF, in respect of the CPP20212 course, based on the expectations of industry, Victoria Police and relevant learners. However, the Tribunal considers that three weeks is an insufficient period over which an RTO could effectively deliver training for the CPP20212 security course to a level that met the requirements of the relevant training product. The Tribunal considers that it is likely to take at least twice as long as that for an RTO to deliver such training effectively.

The Tribunal finds that ACET was non-complaint with Clause 1.1, read in conjunction with Clause 1.2, in respect of the previous delivery of the CPP20212 course over a period of 17 days full-time or 34 part-time. However, the Tribunal acknowledges the context within which this non-compliant practice by ACET has taken place, as referred to in paragraph [‎85].
Second rationale – the course is only a Certificate II-level qualification
In respect of paragraph [‎76(b)], the Tribunal does not accept that the second rationale is an appropriate justification as to why ACET had shortened the duration of its Certificate II-level Security Course from the recommended duration provided in the AQF. The guidance provided in that publication is specific to each of the different levels of certificates being delivered by RTOs, so it does not make sense to shorten the duration of this course because “it is only a Certificate II-level qualification”. That has already been accounted for.
Third rationale – approach of clustering units
In respect of paragraph [‎76(c)], Mr Hana was questioned at the hearing about ACET’s approach of “clustering” certain units within the course which had enabled ACET to condense the course duration to 17 days full-time or 34 days part time. Mr Hana told the Tribunal that there were about four or five clusters within ACET’s CPP20212 course structure which had delivered a total of 19 units. He confirmed that clustering meant that the units were “co-delivered together”. He gave an example where ACET had combined the units of “crowd control” and “armour guard”.
Mr Hana said that according to his inquiries, the approach of clustering units at ACET was carried out in the same way by other RTOs. He said:[50]
So, for example, in the first three days we might deliver the first cluster, which equals two or three units. The second five days we might deliver the second cluster, which might include the common – commonalities of the next four or five units and so forth. So in total there’s I think about four clusters, each cluster includes between two – two… and those units are very similar in terms of the contents and the learning outcomes.
[50] Refer Transcript at P-176 and P-177.
ASQA contends in its Closing Submissions in relation to this issue of clustering that:
38.5. In relation to clustering, ACET’s approach also fails to account for the additional risks associated with the lack of time to develop and practice skills. On the contrary, Mr Hana’s own evidence was that multiple units were delivered simultaneously over a period of a few days.
While the Tribunal’s findings referred to in paragraphs [‎91] and [92] do not turn on this issue, the Tribunal shares ASQA’s concerns about ACET’s decision to condense its CPP20212 course by clustering almost all of the units delivered within the course, in order to squeeze it into 17 days full-time or 34 days part time. The Tribunal considers that if the individual units were intended to be combined, delivered and studied simultaneously, the AQF would have designated those clustered units as a single unit within the prescribed course structure.
In summary
Given the high-risk nature of roles undertaken within the security sector, and considering Mr Hana’s evidence to the effect that many of ACET’s students enrolling for this course have English as a second language, the Tribunal considers that the delivery of the CPP20212 course in 17 days full-time (with a course program spanning just over three weeks), or 34 days part-time, by ACET was insufficient; and it resulted in ACET being non-compliant with Clause 1.1 (read in conjunction with Clause 1.2). However, the Tribunal is satisfied that the broader context within which that decision was made, as referred to in paragraph [85], constitutes important mitigating factors in respect of ACET’s non-compliance. For this reason, the Tribunal has decided not to place any weight on this consideration when reviewing the Cancellation Decision.
By reaching this conclusion, the Tribunal does not condone for a moment the continued practice of some RTOs of offering the New Security Courses to learners over similarly short course durations. On the contrary, and by way of general observation, the Tribunal considers it to be of critical importance that RTOs should ensure that they have allowed for both supervised and unsupervised study time to be incorporated into their security course programs. This will lead to a significant extension in the overall course durations for the New Security Courses. However, the Tribunal considers this to be appropriate, particularly given the Tribunal’s stated concerns about the approach of clustering of units by RTOs, namely, that it would seem to the Tribunal to be inconsistent with an RTO meeting the requirements of the relevant training product which clearly specifies what course content is to be taught as individual units and that this should be reflected, instead of being modified, in an RTO’s course program for such courses.
The Tribunal will now consider the remaining allegations of non-compliance.
Clause 1.7
Clause 1.7 provides as follows:
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.
ASQA contends ACET was non-compliant with Clause 1.7 because there were instances where ACET’s students had demonstrated that they may require support and ACET had not identified their needs, monitored their progress, or provided them with access to educational and/or support services.
Ms Sion submitted that ACET had adequately responded to an initial concern raised by ASQA in the Audit Report in relation to one student. Ms Sion submitted that ASQA then raised concerns about three more students in May 2020 for the first time, as outlined in the Second Bunce Affidavit.
In the Second Bunce Affidavit, Mr Bunce alleged that one sampled student (who will be referred to as Student 1) had been identified by a staff member as requiring support with numeracy, but there was no evidence on his student file of this support having ever been provided to him by ACET.[51] Mr Bunce also alleged that another sampled student (who will be referred to as Student 2) had provided a nonsensical answer during the language, literacy and numeracy test (LLN Test) and had subsequently withdrawn from the ACET course due to a lack of progress and non-attendance. Mr Bunce asserted that the withdrawal of Student 2 suggested a failure on the part of ACET to identify Student 2’s support needs.[52]
[51] Refer paragraph [16.1] of the Second Bunce Affidavit.
[52] Ibid at paragraph [16.2].
ACET maintained that it has always been compliant with this standard. ACET relied upon the affidavit evidence provided by Mr Hana, and Ms Tansley’s expert evidence, in this regard.[53]
[53] Refer Transcript at P-7.
At the hearing, Mr Hana agreed to a proposition put to him by Mr Rebikoff that ACET’s process required by Clause 1.7 was to identify students requiring support during the pre-training review.[54] Mr Hana also agreed that this incorporated arranging for the students to undertake the LLN Test. Mr Hana gave evidence that if any learning needs were identified, they would be recorded on the pre-training reviews, and this would be communicated to the relevant ACET trainer. When asked how those communications took place, Mr Hana said they took place verbally, and if not, an email would be sent to the trainer.
[54] Refer Transcript at P-19.
Mr Hana’s evidence about this issue was hard to follow as it changed from one moment to another. Initially Mr Hana said that ACET recorded evidence of a student’s learning support needs on their training plan, if required. Mr Hana then qualified his evidence, stating that Clause 1.7 did not require a student’s needs to be recorded on their training plan. Mr Hana then accepted, when put to him by Mr Rebikoff, that ACET’s training plans had a section on it to record a student’s needs. However, Mr Hana pointed out that this was not the only place where a student’s needs could be recorded and that they would be identified and recorded on the pre-training review itself. He said those needs might also be recorded in the comments section on the student’s assessments. Mr Hana gave evidence that if this happened, ACET would “put this evidence on his file”.[55] When asked what this meant, Mr Hana said it would be placed on the training plan or on a separate sheet attached to the student’s assessment and then placed on their file. Subsequently, Mr Hana said that a student’s support needs would always be identified on the pre-training review and on their training plan.
[55] Refer Transcript at P-20.
At the hearing, Mr Hana confirmed that he was unable to provide evidence of student support having been provided to any one of ACET’s students. He claimed that none of them had been identified as requiring support during the pre-training review.
Based on a literal interpretation of the wording used in Clause 1.7, Mr Hana also went on to point out that this clause only required that an RTO provide “access” to support. Mr Hana considered that ACET had met this threshold; as he explained:[56]
Mr Hana: The ongoing support, the clauses talk about providing access – access – these are the specific words from the clause itself. 1.7 says,
Providing access to the required support.
The college has provided access to the required support. First of all through its induction process we notify the students about their rights and responsibilities and the support they need. We have the student handbook, which is available on the website, which has all our policies and procedures, including student services and support policy and procedure, which we have allocated two full-time staff, they look after the students, one is a personal support – one provides personal support, the other one provides academic support for the student. It has a range of options and advices on how to seek support and how ACET provides support, that’s one thing. After the enrolment process the support is provided by our administration staff on daily basis and by the trainers on daily basis, so the college satisfies those requirements by providing access to student.
[56] Refer Transcript at P-22.
Mr Hana disagreed with a proposition put to him by Mr Rebikoff that ACET did not have a process for identifying support needs after the pre-training review. Mr Hana said this was done by recording it on the student’s training plan.[57]
[57] Ibid.
Mr Rebikoff questioned Mr Hana about Student 1,[58] and put to Mr Hana that he had been identified as requiring support, but no support had been recorded on his training plan or elsewhere. Mr Hana told the Tribunal that he remembered Student 1, and he had scored four out of six for the numeracy section in the LLN Test. The Tribunal notes Mr Hana’s further evidence about Student 1 as follows:[59]
[58] The Tribunal has omitted the student’s full name for privacy reasons.
[59] Refer Transcript at P-24 and P-25.
Mr Rebikoff: Yes. So do you accept, Mr Hana, that your affidavit is wrong insofar as it said no student was ever identified during the relevant period as requiring support?
Mr Hana: No, I don’t accept that. First of all, Mr [Bunce] - - -
Mr Rebikoff: Even though your own – sorry – even though your own assessor identified this student as requiring support?
Mr Hana: All right, there’s two things here we have to understand. Again I have to go back. First of all, at the enrolment process the assessor – the student has called almost everything right, there’s three sections we assessed students on, numeracy, literacy – literacy and numeracy – he scored perfect scores, I think, in two of the sections. In one of the sections he scored 4 out of 6, the assessor made that – I have to read the exact statement for that student because I know Mr [Bunce] made a mistake and he quoted wrongly what the assessor said on [Student 1]’s LLN, that was one thing we identified, he made the wrong quote and he asserted it to his affidavit. Secondly, this process is an overall process, so if there is any required support that we’ve identified and communicated to the student, the student, throughout his studies, did not require any support. In fact, he has passed his assessments and he graduated without the need for any support. As you can see, we have identified … – the assessor identified that he might need some sort of – I have to read the exact words of [Student 1]’s LLNs, and I think we should - - -
Well, Mr Hana, why don’t we go to it, rather than talking about this in the abstract?
Mr Hana: Yes, let’s go to it. Yes. Yes.
Mr Rebikoff: All right. And it is at the top of the page. You see that ‘office use only’ section?
Mr Hana: Yes.
Mr Rebikoff: You see that it says:
Where greater than one question per section is not answered to a satisfactory level additional support will be required
Mr Hana: Yes.
Mr Rebikoff: And do you see there in section 3, ‘Numeracy’?
Mr Hana: Yes.
Mr Rebikoff: The student has got four out of six wrong so that is more than one; isn’t it?
Mr Hana: Correct, yes.
Mr Rebikoff: And the assessor has ticked the box saying:
Does the student require additional support?
Mr Hana: Okay, yes.
Mr Rebikoff: And if you scroll down to the handwriting in red?
Mr Hana: Yes. It says:
Student needs support with numeracy.
Mr Hana: Yes.
Mr Rebikoff: So do you accept, Mr Hana, that your affidavit is wrong insofar as it says:
No student was ever identified as requiring support.
Mr Hana: No, I don’t - I don’t accept that. What I’m referring to here, they were not - they did not require any support throughout the training.
Mr Rebikoff put it to Mr Hana that his evidence, as given in his affidavits, had changed in relation to this issue, such that he had initially said there were no numeracy requirements in the course being undertaken by this student; and then, when ASQA (through Mr Bunce’s affidavit evidence) had pointed out that there were numeracy requirements in this course, Mr Hana then asserted that the student’s results were sufficient to meet those requirements.[60] Mr Hana did not accept this proposition. Mr Rebikoff pressed Mr Hana further in relation to this issue and the Tribunal notes the following exchange between them during cross-examination:
[60] Refer Transcript at P-27. Refer also to the Second Bunce Affidavit - Mr Bunce pointed out that the industry requirements for CPP30411 Certificate III in Security Operations included the ability to apply numeracy skills to record and collate accurately and to undertake basic computations.
Mr Rebikoff: …If you could have a look at page of the document?
Mr Hana: Okay, yes, yes.
Mr Rebikoff: And do you see the second bullet point there under ‘Industry enterprise’:
Requirements for this qualification include apply numeracy skills, to record and collate accurately and undertake basic computations
Mr Hana: Correct.
Mr Rebikoff: So it’s right, isn’t it, that there are numeracy requirements for this qualification?
Mr Hana: There are numeracy requirements included in every qualification. That’s a standard (indistinct). It’s part of the (indistinct) skills of every single qualification. This is very standard. Now, to what extent, basic computation is not defined and I still stand by my affidavits and my comments that this student was able to perform basic computations and in fact that was evident in him completing the course and graduating without any support.
Mr Rebikoff: And, Mr Hana, you don’t have any qualifications in security; do you?
Mr Hana: No, I’ve got - - -
Mr Rebikoff: But based on the student answering four questions correctly out of a six question test, you say he had sufficient skills so that he didn’t need support; is that your evidence?
Mr Hana: Correct.
Mr Rebikoff: And you say that’s confirmed by the fact that he had no problems completing the course?
Mr Hana: Correct.
Mr Rebikoff: Do you accept that even if the student didn’t in fact have a problem that there is a breakdown in your processes where your own assessor identifies a support requirement and it isn’t provided?
Mr Hana: It would have been provided if it was identified during the training and delivery of the course.
Mr Rebikoff: Well, Mr Hana, with respect you’re not answering my question. Do you accept that there has been a breakdown in your process where the assessor identifies a support requirement and your own evidence is support was not provided?
Mr Hana: There is no breakdown at all. Actually there is continuation. The - once it’s identified and in this case there were more than two mistakes that has been recorded, it has been communicated to the assessor. The assessor is aware of it however the assessor could not identify any support required for the student during the course. That’s why it was not there or recorded on his training plan.
Mr Rebikoff: Well, Mr Hana, there was no evidence of any support being provided to this student on his file; was there?
Mr Hana: There is no requirements to provide support. There is a requirement to provide access to the support which is this - what this clause is all about, providing access to the support and that usually happens through the trainer throughout the student’s studies.
Mr Rebikoff: So is it your evidence, Mr Hana, that the onus is on the student to ask for the support?
Mr Hana: It’s on both the student and the college. The college will provide access to that support and it has been documented and you have people who can provide access to - the student did not seek the support which indicates the student did not require any support plus the staff did not identify any support after the commencement of the training.
The Tribunal considers that Mr Hana’s evidence as highlighted in bold in the above paragraph, and as referred to in paragraph [‎109], reveal the general attitude of Mr Hana to compliance. It seems that Mr Hana determines the bare minimum that he considers needs to be done by ACET to comply with the Standards, after applying a literal interpretation of the wording of the Standards, and then he causes ACET to adopt that minimalist approach. This approach erodes the Tribunal’s confidence that an RTO, under Mr Hana’s leadership, is likely to remain compliant with its obligations under the NVR Act.
In ACET’s initial response, ACET criticised ASQA for focusing only on the two students referred to in the Audit Report. This prompted ASQA to request from ACET the production of 17 student files. Upon review of those files by ASQA, it named three additional ACET students who were initially identified in ACET’s notes for their LLN Test or during their pre-training review as having trouble with spelling and writing.[61] In the training plans for each of those students there was no entry in the field provided to record implemented support strategies. ASQA point out that there was no other information provided by ACET to demonstrate that it had monitored or supported those students as their learning progressed.[62]
[61] Refer paragraph [21] of the Second Bunce Affidavit.
[62] Ibid at paragraph [22].
ASQA contends that by failing to identify and monitor the support needs of a student, an RTO places the student at a disadvantage and compromises their ability to complete their studies, which places into doubt their educational aspirations.[63] The Tribunal agrees with both of these propositions. It considers that such a practice, where students with learning needs are left to fend for themselves once enrolled into VET courses, if established, will place the general reputation of the VET sector at risk.
[63] Ibid at paragraph [23].
During cross-examination, Mr Rebikoff put it to Mr Hana that the three students referred to in paragraph [114] were not provided with support by ACET as they were undertaking their courses. Mr Hana provided a general response in relation to these allegations:[64]
Yes, we went through all those three students. All of them they scored perfectly. They did not - nothing was identified during their enrolment process. Nothing was as far as I know - probably some of them are still continuing the course. If there’s anything that will be identified during the delivery of the course, that will be recorded and they have access to the support needs if they need to.
[64] Refer Transcript at P-30 and P-31.

In conclusion, the Tribunal concludes that Mr Amarni does not meet the FPPR for the following reasons, taken separately or in combination with each other:
(a)Mr Amarni’s failure to disclose to the Tribunal his involvement as a named co-defendant in the eBay Proceeding and his false declaration to the Tribunal that he had not been involved in any civil legal proceeding in the previous five years;
(b)Mr Amarni’s failure to disclose the true nature of the relationship between ACET and Trison or to disclose the substantial and long-standing unsecured loan facility made available by ACET to Trison, suggestive of a close association between those two companies, in circumstances where Trison had its RTO registration suspended and then not renewed by ASQA due to serious non-compliances with the NVR Act;
(c)Mr Amarni’s demonstrated general lack of commitment to fulfilling the role of executive officer and high managerial agent of ACET at an operational level during the lengthy period that he was ACET’s CEO while residing in Sydney, and more recently, at a governance level, as ACET’s sole director and shareholder;
(d)Mr Amarni’s lack of interest and due diligence by failing to properly investigate or even to read the Ombudsman’s Report to find out more about Mr Hana’s role in the 2008 and 2009 RMIT Cheating before ACET engaged his services.
The Tribunal concludes that ACET has not ensured that its executive officers and high managerial agents, Mr Hana and Mr Amarni, meet the FPPR. For this reason, the Tribunal concludes that ACET has been non-compliant with Clause 7.1 and has breached the condition of registration arising under s 23.
The Tribunal also finds that ACET is non-compliant with Clause 8.1 in that ACET’s staff and representatives have not cooperated with ASQA, and in turn the Tribunal upon review, on account of the following matters, taken separately or in combination:
(a)Mr Amarni’s failure to disclose to ASQA and the Tribunal his involvement as a named co-defendant directly implicated in the alleged fraudulent conduct in the eBay Proceeding;
(b)Mr Amarni’s false statement to the Tribunal that there was no relationship between ACET and Trison, and that ACET had not lent money to any third parties, despite the existence of a significant long-standing legal relationship between those two companies as lender and unsecured creditor;
(c)Mr Hana’s failure to disclose to ASQA, when asked at the Audit, that he had provided consultancy services to Trison. The Tribunal is satisfied that Mr Hana had a close association with Trison given his appointment by Trison to represent this RTO at previous audits;
(d)Mr Hana providing a false answer to the Tribunal when he was asked whether he had a gambling habit at any time or had used his credit card to withdraw money for gambling.
Sanctions
ASQA contends that ACET’s more recent evidentiary material has only confirmed that the issues identified by ASQA are “widespread and systemic”, and that they “persist in relation to some of the most critical responsibilities that an RTO has under this legislative regime, including the core obligation to deliver quality training and assessment under clause 1.8”.[114] Mr Rebikoff submitted:[115]
Further, the fact that the applicant has been unable to demonstrate compliance even under the harsh layer of the regulatory spotlight suggests the Tribunal can have no confidence that this RTO and those responsible for running it have either the commitment or the capacity to deliver compliant training and assessment going forward.
[114] Refer Transcript at P-10.
[115] Ibid.
ASQA contends that the only appropriate sanction, which reflects the gravity of the issues associated with ACET’s personnel and its practises, is the sanction of cancellation of its registration.
ACET invited the Tribunal to set aside the Decisions Under Review; and that in substitution, the Tribunal should grant ACET “a three-year registration with an audit after the first year” and that the New Security Courses should be added to ACET’s scope of registration.
In this regard, the Tribunal has considered in detail the evidence provided by ACET in the form of surveys seeking feedback from students about their experience while studying at ACET. The Tribunal acknowledges that the feedback provided by the students points toward the students, overall, having a positive VET experience at ACET. However, the Tribunal is reluctant to draw too much from this because it is possible that the expeditious approach to delivery of VET courses, (that is, over a short duration and with the clustering of units) coupled with a generous approach to the way assessments are conducted, is likely to serve well those students who are keen to secure their qualification as soon as possible in order to be able to enter the workforce quickly; and this may be the reason why they have provided positive feedback about ACET.
CONCLUSION
As set out above, the Tribunal concludes that ACET had failed to comply with Clauses 1.7, 1.8, 3.1, 7.1 and 8.1 (and Clauses 1.1 and 1.2) and does not meet the conditions for registration under ss 22, 23 and 27 of the NVR Act. The Tribunal did not consider it necessary in this case (because of the conclusions above), to make any further finding in relation to whether ACET has failed to meet the condition of registration under s 22A of the NVR Act.
The Tribunal considers that it is appropriate in the circumstances that ACET’s registration as an RTO be cancelled with immediate effect and that no other lesser sanction should be imposed. The Tribunal is not satisfied that the alternative suggested by ACET - of limiting its registration to three years and imposing a requirement that it undergo an audit after the first year - will adequately address the many shortcomings of ACET and both of its executive officers and high managerial agents, to a level at which the Tribunal could be confident that the Standards, conditions of registration and other statutory requirements under the NVR Act, would be complied with by ACET, under the leadership of Mr Hana and the continued direction and ownership of Mr Amarni.
Accordingly, the Tribunal affirms the Cancellation Decision. It is appropriate that ACET’s operations as an RTO cease with immediate effect, save that if a student of ACET has completed the assessment for and successfully passed either a unit or course of study at ACET, but has not yet been issued with a certificate of qualification or statement of attainment, ACET may issue all such outstanding certificates of qualification or statements of attainment and should arrange to do so within 14 days of the date of this decision. ACET’s operations as an RTO will cease as a result of the Tribunal affirming the Cancellation Decisions. Accordingly, it follows that the Tribunal affirms the Change of Scope Decision.

I certify that the preceding two hundred and eighty five (285) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker.

[sgd]...............................................................
Associate
Dated: 30 November 2020

Dates of hearing:

Date last closing submission lodged:

1, 2, 3 and 9 June 2020

15 July 2020

Counsel for the Applicant:

Solicitors for the Applicant:

Ms Renee Sion

Self-represented

Counsel for the Respondent: Mr Stephen Rebikoff

Solicitors for the Respondent: Self-represented
SCHEDULE A
EXTRACT OF TRANSCRIPT OF CROSS-EXAMINATION OF MR HANA
Mr Rebikoff: …Mr Hana, I want to ask you some questions now about the evidence you gave to this tribunal during the stay hearing in relation to your gambling activities?
Mr Hana: Yes. Mr Rebikoff: Just to be clear, I ask you this not because gambling itself is a problem, but because your honesty and whether you’re being truthful and forthright is a real issue in this case?
Mr Hana: Sure.
Mr Rebikoff: When these matters were first raised with the tribunal, the Member asked you directly whether you had a gambling habit and whether you used your credit card for gambling, do you remember that?
Mr Hana: I recall - yes, being asked those questions - - -
Mr Rebikoff: Yes, and you - - -?
Mr Hana: Yes, not exactly the wording that you used, but - - -
Mr Rebikoff: Similar. And you said no, that the Ombudsman had taken your words out of context and made up a story about it, do you remember saying that?
Mr Hana: I cannot recall saying that.
Mr Rebikoff: All right. I’ll take you to the transcript?
Mr Hana: What I recall saying is - I think I told the Member that I did gamble, like any other Australians. I think these were the exact words I used.
Mr Rebikoff: Okay. Well let’s have a look at the transcript. It’s exhibited to Mr [Bunce]’s second affidavit. That’s the one - the May affidavit …
…
Mr Rebikoff: No. Can you start reading - if we can scroll up to about line 25, just above line 25 - about line 23 - you see the Member asks: “I will ask you, did you have substantial debts and a gambling habit?” You said no. “So you didn’t have - never had a gambling habit?” You said, “I had a debt but not a gambling habit,” and then you were asked about where the debt came from and you talk about your expenses?
Mr Hana: Yes.
Mr Rebikoff: And if we can scroll down to line 40, you say at the time you were getting paid that you had a mortgage of $2000, interest rates went up; “I was accessing my credit cards to pay for my mortgage and my expenses,” had my first child, I had family issues so I had to use my credit card. Now:
When the investigator asked me whether I gamble I told him from time-to-time like any other Australian I do go to the casino -

if you can scroll to the next page -
and just have fun, you know, gambling. They took my words out of context. They linked it up with the credit card debts and they said he’s a gambler, he’s an addict. That was one thing.

And then the question’s asked:
What did the credit card information show? Did it show a record of payments that were made to the casino to engage in gambling?

You said:
No, no, no. No, they were just withdrawals.

So how did the investigator get to the finding you had a gambling habit?
They had to make up a story. I think so.

Mr Rebikoff: So do you remember now giving that evidence?
Mr Hana: Well it’s stated here, yes. I wouldn’t dispute that, yes.
Mr Rebikoff: Well do you remember telling the tribunal that?
Mr Hana: I think so, yes. I told her about the habit, yes.
Mr Rebikoff: Well, Mr Hana, if you go back to the previous page, the question that’s asked at line 25, you say you never had a gambling habit: “I had a debt but not a gambling habit?”
Mr Hana: It’s correct, yes.
Mr Rebikoff: You agree, don’t you, that when this matter was first raised with you by the Ombudsman, you denied that you gambled at all, that’s right, isn’t it?
Mr Hana: I think I said I have gambled occasionally.
Mr Rebikoff: Well, if we look at the Ombudsman’s report - so if you go back to Mr [Bunce]’s affidavit, his first affidavit - do you have Mr [Bunce]’s first affidavit?
Mr Hana: Yes.
Mr Rebikoff: If you go to page 74, which should take you to paragraph 278, and I see [the associate] is sharing that on the screen as well?
Mr Hana: Yes.
Mr Rebikoff: Do you see that in that paragraph, at the first bullet point it says, “On 24 November” - when you were first interviewed about this - you said, “I gambled probably once or twice in my lifetime, that’s it. It’s against my beliefs, so I don’t gamble?”
Mr Hana: Yes.
Mr Rebikoff: So you denied initially that you gambled, and then you subsequently admitted that you gambled occasionally?
Mr Hana: Yes.
Mr Rebikoff: All of your interviews with the Ombudsman involved you giving evidence under oath, didn’t they?
Mr Hana: I think so, yes.
Mr Rebikoff: So you accept that you lied under oath when you say initially, “I gambled probably once or twice in my lifetime, that’s it. It’s against my beliefs, so I don’t gamble?”
Mr Hana: I cannot recall the context of why I said that and what sort of questions were asked at the time, what sort of gambling, aspects of gambling, but I’ve mentioned I (indistinct), I’ve gambled.
Mr Rebikoff: Well, but initially you denied it, didn’t you, and you denied it under oath, do you accept that?
Mr Hana: I didn’t deny it completely.
Mr Rebikoff: All right. Let’s have a look at it, Mr Hana. It’s in the supplementary T documents at page 7434?
Mr Hana: What page is it exactly, the 7 - - - 25
Mr Rebikoff: 7434. Can we just scroll down and get the page number of the transcript? Page 30. So this is your first interview, and if you look at question 149 - you can look at it on the screen, Mr Hana?
Mr Hana: Yes. Yes, sure.
Mr Rebikoff: The question is asked:
Do you gamble much?---No
Do you gamble at all?---No. I mean, I gamble probably once or twice in my lifetime, that’s it.
So do you play the poker machines at all? Have a think about it?---I probably played it once or twice. That’s all during my life.
?---M’mm.
Do you go to the casino?---No. I go for a restaurant, that’s it.

Mr Rebikoff: So do you accept, Mr - and if you just go, scroll up quickly to the very start of that transcript, page 7406, do you see there question 8? It says:
The evidence we are taking through this investigation is taken under oath in accordance with the provisions of the Evidence Act, so I would ask you to swear yourself in.

?
Mr Hana: Yes.
Mr Rebikoff: So do you accept, Mr Hana, that when you initially answered those questions, for whatever reason, legitimate or otherwise, you gave false evidence under oath?
Mr Hana: Not probably false evidence, but I was partially incorrect in my statements.
Mr Rebikoff: All right. That’s how you characterise your evidence, is it?
Mr Hana: Yes, I mean in relation to those questions, yes.
Mr Rebikoff: In a subsequent interview you were presented with evidence that you had signed receipts and received cheques, the winnings on gaming machines. You were also presented with evidence that you had made cash advances from your credit cards at gaming venues. Do you remember that?
Mr Hana: I can’t remember that. I’ll rely on these transcripts.
Mr Rebikoff: All right. Well let’s go to it. It starts at 7668?
Mr Hana: Okay, let’s say whatever is true, whatever’s in there is true, yes.
Mr Rebikoff: 7668, again it up on the screen?
Mr Hana: Yes.
Mr Rebikoff: And if we can start with question 233, so if we can scroll up?
Mr Hana: Yes.
Mr Rebikoff: So talking about your credit card applications?
Mr Hana: Yes.
Mr Rebikoff: And then if you just keep reading where it’s asked about your gambling, and we scroll up:
I want to now ask you again - I want you to just consider your answer very carefully - during the time you were making these applications, were you gambling?

You say:
I’ve occasionally been gambling, as in gambling, I go to the pokies.

That was something you denied previously. And they say, “Now I’m going to ask” - sorry, Mr Hana, you were going to say something?
Mr Hana: Yes. I think the initial response wasn’t in relation to the casino. That’s why I deny that.
Mr Rebikoff: I don’t want to go back to the initial - I don’t want to take time on that, but I suggest to you that’s not right. It’s then, at question 238, said:
Now I’m going to ask you another question. When you’re gambling have you had cause to have to sign a receipt and they will give you cash?

And you say yes, and it’s asked:
Do you recall signing those receipts to obtain the cash?---Yes.
I’ll ask you another question. At times if you win a lot of money you might obtain cheques that you’ve had to go in and cash from a bank account?

You say yes. They ask you how many do you think approximately. You say:
I can’t give you a number.

?
Mr Hana: Yes.
Mr Rebikoff: “All together” and so on, and then at question 247:
I’m going to ask you another question. When was the last time you put a $50 note into a poker machine, a gaming machine?

You say:
Yesterday.

And then they ask about whether you’ve had a card for it. If we can skip over to 7671, you explain these are personal matters, and that’s fair enough, and then going over the page to page - you say it’s just poker machines, you never play in Crown. Do you see that answer at 258?
Mr Hana: Yes.
Mr Rebikoff: And that’s inconsistent with the evidence that you have now given to the tribunal?
Mr Hana: Sorry, how it’s inconsistent?
Mr Rebikoff: Well, Mr Hana, the transcript we were looking at at the stay hearing, you said I do go to the casino?
Mr Hana: No, I do go to the casino, but not for gambling purposes. The casino’s a vast complex. It has hundreds of restaurants in it, and it’s got a kids area where I take my kids on a regular basis there - not on a regular basis, but once in a month or once every two months to play at the Galactic Circus there, like many, many people with families, you know, they do that.
Mr Rebikoff: Again, I don’t want to take time going back to it, but I’m just going to put to you that what you said to the tribunal - this is page 89 of the transcript at the very first line of that page:
I do go - like any other Australian, I do go to the casino and just have fun, you know, gambling.

?
Mr Hana: Where is that, sorry? I think I’ve been misunderstood on that particular point there, because I hardly gambled at the casino, probably once or twice in my lifetime. I do go to the casino almost at some stage as in the complex - we’re not talking about the gambling area here. I do go to the casino, sometimes every week, to go and have dinner with my wife, take my kids to the Galactic Circus and play with them there, but I hardly gambled in there, probably once or twice in my lifetime, which I stand by those comments.
Mr Rebikoff: Well, Mr Hana, look at what’s the answer to question 258: “I have never played in the Crown.” Do you accept that the evidence that you just gave just then is inconsistent with the statement that you’ve made there?
Mr Hana: Okay, let me read it carefully. Which paragraph are you referring to, sorry? Is that part of my transcripts at the tribunal or - - -
Mr Rebikoff: No, this is your transcript to the Ombudsman?
Mr Hana: -Yes.
Mr Rebikoff: The answer directly above question 259?
Mr Hana: 259. So I’ve never played in the Crown. Probably at that time, yes. That was back in - remember this investigation took place in 2009. At - - -
Mr Rebikoff: Mr Hana - - -?
Mr Hana: I’ve never played at the Crown at that time.
Mr Rebikoff: Mr Hana, I suggest to you that you are not being honest with the tribunal still?
Mr Hana: I am being very honest with the tribunal.
Mr Rebikoff: And rather than acknowledging the inconsistency here, what you’re doing is simply to explain it away?
Mr Hana: No, there’s no inconsistency. This answer was given at the time of the investigation which took place in 2009, and I’m giving you an answer right now, 11 years later. I’m telling you there are probably a couple of occasions that I’ve gambled at the Crown from that time till now. So where is the inconsistency here? Probably at that time I’ve never had gambled at the Crown.
Mr Rebikoff: All right. If you go over to page 7673 - I don’t want to take up too much time with this - and question 267, it’s asked:
At the time when you were team leader right through to 2009, would you describe yourself as having a serious gambling problem?

And you say, “I’ve been gambling, but it’s not something that” - the question 45 is asked, “Has it affected your life?” You say, “To some degree it has,” and then you say, “It has. It has, but it’s not all about credit cards” and so on.
You repeat the explanation about having a mortgage and using it to pay for the mortgage?
Mr Hana: Yes.
Mr Rebikoff: And then at page 7674, the investigators stop you at about 270, say, “Mr Hana, could I just stop you there for a moment?” They warn you that they’ve got powers, and in particular, in relation to cash advances, they tell you that they know that you were making cash advances at gaming venues. Do you see that? 274:

We know exactly where you made the cash advances, and if you were making cash advances at a gambling club or hotel you’re not buying milk or bread or paying off your house with that money. When you were withdrawing multiple amounts of $300, $200 within the gambling institutions, the money is not going to buying bread and milk, is it?

And you say, “Some of it is.” And they say, “1 per cent.” And they say, “Seriously, Mr Hana, you’ve got a situation where you’re winning money where you have to be paid by cheque and from the cash advances,” and so on. Then finally, at question 279, you accept that you use part of the money from your credit card for gambling, do you see that?
Mr Hana: Yes.
Mr Rebikoff: “I’ve used part of it for gambling, part of it for food?”
Mr Hana: Yes.
Mr Rebikoff: And then, over the page, at question - in fact, going over to page 7690, you’re 25 asked, at question 377:
When you were doing that, how would you describe your gambling habit at that time?

And you say – and the answer is:
A normal gambling – I’m using the word ‘habit.’

You say:
Occasionally, after I finished work, I would go there, or in between breaks.

And when asked, ‘How often?’ you say:
Sometimes I didn’t go for a month. Sometimes I would go every day within a week, or after work, or between breaks. Sometimes I don’t go at all. Depends on the cash available.

You were asked about how often you leave your office to gamble during work times, and you say:
A lot of the times either after work or before work.

When asked whether it was during work, you say:
Sometimes, yes. We have a break, or sometimes before work. Some places are open from 8 o’clock.

And it’s asked:
Do you go to one place, or do you spread it?

You say:
Usually the one place.

And it’s asked:
Which place is that?

And it’s one on Lygon Street. So, coming back to your evidence to the tribunal at the stay hearing, do you maintain that the Ombudsman made up a story when he referred to you having a gambling habit and using your credit cards for gambling?
Mr Hana: No, I do not argue with the Ombudsman here that I’ve used – I did gamble. I’ve used part of those credit cards – I mean the cash advances – to play pokies. I – you know, I don’t argue that. Whatever the Ombudsman – I don’t have any issues with that. It’s probably – the context and the words that have been used, I disagree with that argument.
And do you accept that you were not being forthright or honest with the tribunal when you denied you had a gambling habit, and denied that you have used your credit card for gambling?
Mr Hana: I think you’re mixing a lot of things here. Having a gambling habit – there’s a difference between gambling and having a gambling habit. I’ve never told the tribunal I’ve never gambled. I cannot recollect saying that at the tribunal.
In fact, I said I do gamble, like any other Australians. If the tribunal was referring to questions regarding that time, at that time, I had credit cards. Whether – how much I’ve used, how much money I’ve used from those credit cards to gamble, I cannot recollect. That was it, I think. That’s – from memory, that’s what I answered the tribunal. We can go to the transcript itself and see what I answered.
Mr Rebikoff: Well, Mr Hana, I don’t want to take up too much time. We looked at the transcript before?
Mr Hana: Yes.
Mr Rebikoff: I’m just asking you if you agree that in your evidence that we looked at before, you weren’t forthright or honest with the tribunal. Do you accept that or not?
Mr Hana: I disagree with that. I will not accept that. I have been honest with the tribunal.

Details

AGLC: Australasian College of Education and Training Pty Ltd and Australian Skills Quality Authority [2020] AATA 4806
Case: [2020] AATA 4806
Decision Date: 30 November 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal (Tribunal) considered an application by Australasian College of Education and Training Pty Ltd (ACET) for review of decisions made by the Australian Skills Quality Authority (ASQA) to cancel ACET's registration as a Registered Training Organisation (RTO) and to refuse its application to change its scope of registration. ACET sought to set aside these decisions.

The Tribunal was required to determine whether ACET had breached its conditions of registration under the *National Vocational Education and Training Regulation Act 2011* (Cth) and failed to comply with the *Standards for Registered Training Organisations 2015*. Specifically, the issues included instances of cheating during examinations, inadequate supervision and assessor conduct, non-adherence to assessment guides, insufficient duration of a security course, failure to identify and support student learning needs, and crucially, whether ACET's executive officers and high managerial agents met the "fit and proper person" requirements, particularly in light of past conduct involving false statements, non-disclosure of associations with a suspended RTO, and a history of assisting students to cheat.

The Tribunal found that ACET had failed to comply with its obligations under the *National Vocational Education and Training Regulation Act 2011* and the *Standards for Registered Training Organisations 2015*. The reasoning focused on significant breaches, including inadequate assessment systems and a failure to ensure its key personnel met the fit and proper person requirements. The Tribunal noted that the current and former CEOs had demonstrated a lack of insight and contrition regarding past breaches and a minimalist, reactive approach to compliance. Consequently, the Tribunal lacked confidence that ACET would meet its future obligations.

The Tribunal affirmed ASQA's decisions to cancel ACET's registration as an RTO and to refuse its application to change its scope of registration.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

If the Tribunal sets aside or varies the Cancellation Decision, the Tribunal must also consider whether ACET’s application to change its scope of registration should be granted. If the Tribunal affirms the Cancellation Decision, it will necessarily follow that the Change of Scope Decision will be affirmed because ACET’s registration as an RTO will have ended. BACKGROUND In the First Amarni Affidavit, Mr Amarni stated (on 12 December 2019) as follows:(a)since 2012, approximately 6,000 students had enrolled at ACET “and/or” completed about 6,800 qualifications;[7] [7] Refer paragraph [2] on page 2 (not paragraph [2] on page 1) of the First Amarni Affidavit.(b)initially ACET specialised in delivering training in security operations;[8] [8] Ibid at paragraph [4] on page 2.(c)since 2014, due to demand, ACET expanded its operations into other areas;[9] [9] Ibid.(d)ACET’s registration included approximately 15 courses across several industries including early childhood education, building and construction, security operations, beauty, make-up and hairdressing;[10][10] Ibid.(e)ACET employs “approximately 45 highly-qualified administrative, student support, trainers and management staff”;[11][11] Refer paragraph [6] on page 2.(f)ACET engages 24 trainers on a contract basis;[12][12] Ibid at paragraph [35].(g)528 students were enrolled at ACET (as at 2 January 2020) and all of them had commenced their training in 2018 and 2019 and would continue courses already commenced, and a further 200 students would be commencing new courses;[13][13] Ibid at paragraph [7].(h)ACET delivered training from four premises in Victoria based at Coburg, Coolaroo, Altona and Dandenong, and it hired other training facilities from time-to-time as required. ACET was approved to deliver the (now superseded) CPP20212 Certificate II in Security Operations and CPP30411 Certificate III in Security Operations (referred to collectively as Security Courses) from its four campuses;(i)ACET also delivered the following further courses from its Coburg premises;[14] (i)CHC30113 Certificate III in Early Childhood Education and Care;(ii)CHC33015 Certificate III in Individual Support;(iii)SHB30416 Certificate III in Hairdressing;(iv)SHB30115 Certificate III in Beauty Services;(v)SHB30215 Certificate III in Make-Up;(vi)CPC40110 Certificate IV in Building and Construction (Building);(vii)CHC43015 Certificate IV in Ageing Support; and(viii)CHC50113 Diploma of Early Childhood Education and Care.[14] Ibid at paragraph [16] to [25] inclusive, stating the position as at 2 January 2020. When Mr Hana gave evidence at the substantive hearing, he told the Tribunal that he had arranged to close some of ACET’s campuses due to the reduction in revenue on account of the stay condition prohibiting ACET from enrolling new students. ACET reported total revenue for the 2018/2019 financial year of about $4.8m.[15] Reportedly, this was a substantial reduction in revenue from the two previous financial years. ACET’s total revenue was reported as being about $6.4m for the 2017/2018 financial year; and about $6.85m for the 2016/2017 financial year.[16] [15] Refer ACET’s Financial Report for year ended 30 June 2018 forming part of Exhibit “MA-6” of the Second Amarni Affidavit.[16] Ibid.

Evidence

Evidence Before The Court

ACET engaged an RTO consultant, Ms Sally Tansley, to provide an opinion about the non-compliances as alleged by ASQA. An Affidavit sworn by Ms Tansley on 27 May 2020 was lodged with the Tribunal with two reports dated 20 March 2020 and 28 May 2020. Ms Tansley also appeared as an expert witness at the substantive hearing.ASQA’s affidavits and documentary evidence ASQA relied upon two affidavits lodged by an ASQA Lead Regulatory Officer, Mr Paul Bunce, who was involved in conducting the audit of ACET in February 2019:(a)Affidavit of Mr Bunce sworn 13 January 2020 (First Bunce Affidavit); and(b)Affidavit of Mr Bunce sworn 7 May 2020 (Second Bunce Affidavit). At the hearing, ACET informed the Tribunal that it would not require Mr Bunce to be made available for cross-examination. He was not called as a witness at the substantive hearing. The parties lodged statements of facts, issues and contentions (SFICs) and ASQA lodged an amended SFIC. ASQA lodged two sets of documents in accordance with s 37 and s 38AA of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The Tribunal will refer to these sets of documents as the T-Documents and Supplementary T-Documents respectively.[5] Further evidence was lodged during and after the hearing (some at the request of the Tribunal). [5] ASQA lodged the T-Documents totalling 123 pages with the Tribunal on 24 January 2020 and the Supplementary T-Documents totalling 7,883 pages on 20 May 2020. The hearing of the substantive application took place by video-link over four days on 1, 2, 3 and 9 June 2020. The Tribunal acknowledges the assistance provided to the Tribunal by Ms R Sion, appearing as counsel for ACET, and Mr S Rebikoff, appearing as counsel for ASQA. The standard of their advocacy was exemplary; and helpfully, they each prepared comprehensive closing submissions which were lodged with the Tribunal sometime after the hearing. For the reasons set out below, the Tribunal considers it appropriate in the circumstances for ACET’s registration as an RTO to be cancelled and that ACET’s application to change its scope of registration be refused. Accordingly, the Tribunal affirms the Decisions Under Review. LEGISLATIVE FRAMEWORKObjectives of the NVR Act RTOs are currently regulated by ASQA under the NVR Act. All references made to section numbers in these Reasons for Decision are references to provisions of the NVR Act except where otherwise indicated. The objectives of the NRV Act are set out in s 2A and provide as follows:2A 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 standard-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(e)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(f)to protect students undertaking, or proposing to undertake, Australian VET by ensuring the provision of quality VET; and(g)to facilitate access to accurate information relating to the quality of VET.Note 1:The standards‑based quality framework mentioned in paragraph (b) consists of instruments made by the Ministerial Council, the Minister or the National VET Regulator.Note 2:These objects are subject to the constitutional basis for this Act (see Division 3).

Decision

Reasons for decision

ACET seeks review of the Cancellation Decision and Change of Scope Decision (which the Tribunal will refer to collectively as the Decisions Under Review), by the General Division of the Administrative Appeals Tribunal (Tribunal). ACET applied for a stay of the Decisions Under Review pending resolution of this application. An interim stay hearing took place on 16 December 2019 followed by a final stay hearing on 22 January 2020. The Tribunal granted both an interim and final stay of the Cancellation Decision on condition that ACET not enrol any new students. No stay was granted in relation to the Change of Scope Decision because an order to stay that decision would have had no practical effect. Between 1 August 2011 and 21 January 2020, Mr Mahmoud Amarni, otherwise known as Mr Michael Amarni, held the position of CEO of ACET. Mr Amarni is the sole director and shareholder of ACET. On 21 January 2020, the day before the final stay hearing, Mr Amarni appointed ACET’s Training and Compliance Manager, Mr Nihal Hana, to become the new CEO of ACET. Mr Hana continues to hold the position of CEO of ACET.[4][4] As indicated on the signature block of an email sent by Mr Hana to the Tribunal on 5 November 2020.ACET’s affidavits, expert reports and documentary evidence ACET relies upon the following affidavit evidence which annexes most of its documentary evidence:(a)Affidavit of Mr Amarni sworn 12 December 2019 (First Amarni Affidavit);(b)Affidavit of Mr Amarni sworn 2 January 2020 (Second Amarni Affidavit);(c)Affidavit of Mr Amarni sworn 20 January 2020 (Third Amarni Affidavit);(d)Affidavit of Mr Hana sworn 12 December 2019 (First Hana Affidavit);(e)Affidavit of Mr Hana sworn 2 January 2020 (Second Hana Affidavit);(f)Affidavit of Mr Hana sworn 20 January 2020 (Third Hana Affidavit);(g)Affidavit of Mr Hana sworn 20 March 2020 (Fourth Hana Affidavit);(h)Affidavit of Mr Hana sworn 18 May 2020 (Fifth Hana Affidavit); and(i)Affidavit of Mr Hana sworn 29 May 2020 (Sixth Hana Affidavit). ACET engaged an RTO consultant, Ms Sally Tansley, to provide an opinion about the non-compliances as alleged by ASQA. An Affidavit sworn by Ms Tansley on 27 May 2020 was lodged with the Tribunal with two reports dated 20 March 2020 and 28 May 2020. Ms Tansley also appeared as an expert witness at the substantive hearing.ASQA’s affidavits and documentary evidence ASQA relied upon two affidavits lodged by an ASQA Lead Regulatory Officer, Mr Paul Bunce, who was involved in conducting the audit of ACET in February 2019:(a)Affidavit of Mr Bunce sworn 13 January 2020 (First Bunce Affidavit); and(b)Affidavit of Mr Bunce sworn 7 May 2020 (Second Bunce Affidavit). At the hearing, ACET informed the Tribunal that it would not require Mr Bunce to be made available for cross-examination. He was not called as a witness at the substantive hearing. The parties lodged statements of facts, issues and contentions (SFICs) and ASQA lodged an amended SFIC. ASQA lodged two sets of documents in accordance with s 37 and s 38AA of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The Tribunal will refer to these sets of documents as the T-Documents and Supplementary T-Documents respectively.[5] Further evidence was lodged during and after the hearing (some at the request of the Tribunal). [5] ASQA lodged the T-Documents totalling 123 pages with the Tribunal on 24 January 2020 and the Supplementary T-Documents totalling 7,883 pages on 20 May 2020.

Ratio Decidendi

Legal Principle Established

Section 21 mandates that an RTO must comply with the conditions set out in ss 22 to 28. The importance of due compliance with those conditions is reflected in s 111, which renders contravention of the conditions set out in s 21, subject to civil penalties.Conditions of registration The conditions of registration potentially relevant in this application include:(a)under s 22, that an RTO must comply with the NVR RTO Standards; Quality Standards; AQF and DPR. The NVR RTO Standards are defined as meaning standards made under s 185 by the Minister, by legislative instrument, and as agreed by the Ministerial Council. The Minister issued a standard under s 185(1) and s 186(1), entitled Standards for Registered Training Organisations (RTOs) 2015 (Standards);(b)under s 22A, that an RTO must “demonstrate a commitment, and the capability, to deliver quality vocational education and training”;(c)under s 23, that an RTO must satisfy the FPPR. Schedule 3 to Attachment A of the Standards contain the FPPR;[6] (d)under s 24, that an RTO must satisfy the FVRAR;(e)under s 25, that an RTO must notify ASQA of material changes to the organisation as prescribed in this provision;(f)under s 26, that an RTO must give ASQA such information as ASQA requests, by notice in writing, for the purposes of this Act, so long as the organisation is capable of complying with the request; and(g)under s 27, that an RTO must cooperate with ASQA, at least to the extent that it is necessary for ASQA to perform its functions or to facilitate ASQA’s performance of its functions.[6] Refer Standard 7. The structure of the Standards is also set out in Part 1- Preliminary, as follows (emphasis added):StructureThese Standards consist of eight Standards. Under each Standard is a set of Clauses of the Standard. To comply with a Standard, the RTO must meet each of the Clauses. A person applying to register as a new RTO must demonstrate the capacity to meet these Standards for all of the person’s intended scope of registration.For each Standard a context statement is also included. The context does not form part of the Standard itself, and has been included to provide background information to help readers understand the Standard. The Standards and Clauses are collectively referred to as Standards.FPPR Section 23 provides that an RTO must satisfy the FPPR. Standard 7 of the Standards requires that, “The RTO has effective governance and administration arrangements in place”.Clause 7.1 is relevant in this application and provides as follows:To be compliant with Standard 7 the RTO must meet the following: 7.1 The RTO ensures that its executive officers or high managerial agent:a) are vested with sufficient authority to ensure the RTO complies with the RTO Standards at all times; andb) meet each of the relevant criteria specified in the Fit and Proper Person Requirements in Schedule 3.… Section 3 defines an “executive officer”, relevantly, as follows:executive officer, in relation to a registered training organisation, means:(a)a person, by whatever name called and whether or not a director of the organisation, who is concerned in, or takes part in, the management of the organisation; or (b) if the organisation is a body corporate:(i)a person who, at any time during a period for which the organisation is registered, owns 15% or more of the organisation; or(ii)a person who, at any time during a period for which the organisation is registered, is entitled to receive 15% or more of dividends paid by the organisation; or(c)…

Dates of hearing: Date last closing submission lodged:	1, 2, 3 and 9 June 2020 15 July 2020
Counsel for the Applicant: Solicitors for the Applicant:	Ms Renee Sion Self-represented
Counsel for the Respondent:	Mr Stephen Rebikoff
Solicitors for the Respondent:	Self-represented