Australian Academy of Management & Science Pty Ltd and Australian Skills Quality Authority
[2013] AATA 530
[2013] AATA 530
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/4601; 2013/0393; 0395 & 1702
Re
Australian Academy of Management & Science Pty Ltd
APPLICANT
And
Australian Skills Quality Authority
RESPONDENT
Decision
Tribunal SM P W Taylor SC
Date 30 July 2013 Place Sydney Decision Summary
Each of the decisions under review is set aside.
........................................................................
SM P W Taylor SC
Catchwords
Vocational Education and Training - non-compliance with relevant standards - appropriate "sanction" - cancellation decision set aside.
Legislation
National Vocation Education and Training Regulator Act 2011 ss 17, 21, 22(1), 29, 31, 36, 38, 39, 40, 93, 94, 95, 98, 103-110, 157, 216
Standards for NVR Registered Training Organisations 2011 snrs 15, 16, 17, 18, 19, 20, 23 24, 25
Education Services for Overseas Students Act 2000 ss 9AA, 9AC, 14A, 33, 170
Administrative Appeals Tribunal Act 1975 ss 2A, 33(1AA), 37(1), 43Cases
Success Fast-Trak Pty Ltd v ASQA [2012] AATA 531
Ivy Education Group Pty Ltd v Australian Skills Quality Authority [2013] AATA 138Secondary Materials
National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 stds 1,2, 3, 4, 11, 14
REASONS FOR DECISION
SM P W Taylor SC
30 July 2013
“RTO” Registration - the NVR Act and ESOS Act
The Applicant, to which I will refer as “AAMS”, provides vocational education courses, primarily to overseas students. In the argot of those familiar with the relevant legislative and regulatory requirements, it is an “RTO” – a “registered training organisation” - that provides “VET” (“Vocational Education and Training”) courses.
Only RTOs registered under ss 17 and 216 of the National Vocational Education and Training Regulator Act 2011 (the “NVR Act”) can provide accredited vocational education and training courses recognised by the Australian Qualifications Framework[1] - and the particular courses must be within the RTO’s “scope of registration”.[2] If an organisation provides courses to overseas student visa holders, it must also be registered, in relation to those courses, on the Commonwealth Register of Institutions and Courses for Overseas Students (“CRICOS”) - a register provided for under s 14A of the Education Services for Overseas Students Act 2000 (the “ESOS Act”).
[1] The Australian Qualifications Framework (“AQF”) is a structure of types of qualifications. It gives effect to Australian education standards determined by the Council of Commonwealth, State and Territory Ministers responsible for higher education.
[2] NVR Act ss 93, 94 & 116 – breaches of these provisions attract penalties, or civil penalties, ranging from 120 to 300 penalty units.
RTOs must comply with the “VET Quality Framework”[3] and various other conditions.[4] The VET Quality Framework includes the Standards for NVR Registered Training Organisations (the “SNR Standards”).[5] The National VET Regulator - the Australian Skills Quality Authority (“ASQA”)[6] - can sanction a non-compliant RTO in various ways, including suspension or cancellation of its NVR Act registration. Similarly, an ESOS registered RTO must comply with the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students (the “National Code”) - a Ministerial code authorised by s 33 of the ESOS Act. A failure to comply with the National Code provides grounds for the suspension or cancellation of registration under the ESOS Act.
[3] The VET Quality Framework includes (i) the SNR Standards, (ii) the AQF, (iii) the fit and proper person requirements in NVR Act s 186, (iv) the financial viability requirements in NVR Act s 158, and (v) the data provision requirements contemplated by NVR Act s 187.
[4] The principal conditions are set out in NVR Act ss 21 – 30. Apart from requiring compliance with the “Vet Quality Framework” the conditions mainly require RTOs to co-operate with, and provide information to, ASQA. ASQA has a general discretionary power to impose any additional conditions that it considers “appropriate”: NVR Act s 17(6) & 29(1).
[5] The Standards for NVR Registered Training Organisations are standards agreed by the Ministerial Council for Tertiary Education and Employment and are made under NVR Act s 185(1).
[6] The National VET Regulator is the body established by s 155(2) of the NVR Act 2011. Its name, as the Australian Skills Quality Authority, derives from the National Vocational Education and Training Regulator Regulations 20111, cl 5.
AAMS became an “NVR registered training organisation” (under the NVR Act), and also obtained its ESOS Act registration, in 2007. Its registration period was due to expire on 23 October 2012, but in May and June 2012 AAMS applied for the renewal of its statutory registrations. ASQA has not finally determined those renewal applications. Until ASQA makes its decision, AAMS’s period of NVR Act registration continues, because of the terms of NVR Act s 31(3). There are similar, but not identical, provisions in ss 9AA & 9AC of the ESOS Act. Their practical effect is to continue a registration that would otherwise have expired where either (i) a “designated authority”[7] has recommended registration renewal, but no formal renewal decision has been made, or (ii) students are not due to complete their course until after the RTO’s scope of registration would ordinarily expire. In the present matter ASQA regards itself as having made such a recommendation, and has acted on the basis that AAMS’s ESOS Act registration continues - in any event, unless and until the cancellation decision under review takes effect.[8]
[7] ASQA is the relevant “designated authority”: see ESOS Act ss 5 & 7A(1)[Item 2].
[8] Consistent with the view, although in a strategy whose real efficacy may be debatable, during the course of the present hearing ASQA provided a formal recommendation of the kind contemplated by s 9AA of the ESOS Act. The recommendation was dated 27 June 2013, but was described as being “a recommendation with effect from 13 June 2012”. ASQA’s representative explained that the appearance of formal irregularity in the underlying circumstances was attributable to the transitional incongruities associated with the new legislative regime introduced in 2011.
The Decisions under review
ASQA audited AAMS in March 2012.[9] As a result of the audit, ASQA determined that AAMS did not comply with some aspects of the SNR Standards, and similar requirements in the National Code. As a consequence, in October 2012 ASQA cancelled AAMS’s NVR registration, with effect from 23 October 2012. In January 2013, acting pursuant to a Ministerial delegation under s 170 of the ESOS Act, ASQA also cancelled AAMS’s ESOS Act registration, with effect from 31 January 2012. Those two cancellations are the principal decisions AAMS seeks to have reviewed in the present proceedings. Both cancellation decisions have been consensually stayed, pending the outcome of AAMS’s review applications.
[9] NVR Act s 35 authorises the National VET Regulator to conduct a “compliance audit” at any time, in order to assess whether an RTO complies with the NVR Act or the VET Quality Framework. The March 2012 audit scope was restricted to 3 of the 5 components of the VET Quality Framework (i) SNR compliance, (ii) AQF compliance and (iii) data provision. (AAMS’s compliance with the “fit and proper” person and “financial viability” components of the VET Quality Framework has not been in contest.) The ASQA audit occurred as a consequence of recommendations that had been made after an earlier audit in March 2011. That 2011 audit revealed non-compliance issues involving (i) enrolling students in courses where they had not obtained pre-requisite qualifications (ii) the issue of qualifications before required assessments had been completed, (iii) inadequate training and assessment strategies, and (iv) deficient record keeping, particularly in relation to failing to monitor student attendance and progress, and misleading advertising.
AAMS also seeks review of two related ASQA decisions. Those decisions, which have not been stayed, involve the suspension of AAMS’s NVR Act registration (with effect from 23 October 2012) and the suspension of its ESOS Act registration (with effect from 31 January 2013). The review applications relating to those matters are subsidiary in nature.[10] Both AAMS and ASQA consider that the Tribunal’s decision on the two cancellation decisions will necessarily determine the result of the application to review the suspension decisions.
[10] ASQA’s 19 October 2012 NVR Act decision was to ”suspend … all of the AAMS’s scope of registration” and to require AAMS not to enroll students in, or to allow students to begin, any VET course. ASQA and AAMS have apparently understood this “suspension” as only operating in relation to “new” students, and as not preventing the continuation of course delivery to people who were existing students as at 19 October 2012. ASQA’s 7 January 2013 suspension decision did not specify either the courses, or the location, to which the suspension applied – despite that formality being an arguable condition precedent to the validity of the decision. Assuming the decision was valid, despite that apparent irregularity, its effect was to prohibit (i) any conduct for the purpose of “recruiting or enrolling” overseas students, (ii) accepting money from an overseas student, and (iii) permitting a overseas student to begin a course. Again, ASQA and AAMS have proceeded on the basis that the suspension decision does not prevent the delivery of courses to existing students.
Scope of AAMS’s NVR Act Registration
AAMS’s NVR Act scope of registration, relevant to the present review proceedings, involves four courses:- two Certificate III qualifications, and two associated Diploma Courses, in Hospitality (Commercial Cookery) and Disability.[11] In the course of the events leading up to the decisions under review, and subsequently, AAMS has made changes relating to the content, organisation, and assessment of these courses.[12] Those changes are reflected in revised “Training and Assessment Strategy” documents AAMS prepared after, and partly in response to, a further ASQA audit in February 2013.
[11] ASQA’s 2 July 2012 letter also notified AAMS of the rejection of its application to add four courses(Certificates III & IV in Aged Care, Certificate IV in Accounting, and Diploma of Accounting) to its scope of registration. That decision is not the subject of the present review proceedings. (This is so notwithstanding that in a stay application lodged on 15 October 2012 AAMS sought an order that the additional courses be approved for addition to its scope of registration.)
[12] The content requirements are prescribed in the relevant approved “Training Package” in the Australian Qualifications Framework. The Training Package contains the “units of competency” for the particular qualification, and specifies requirements for the assessment of competence.
I have set out in the schedules to these reasons, summaries of the essential information in AAMS’s revised “Training and Assessment Strategies” for the four courses. It is sufficient at this point to provide the following brief outline of the content of the revised courses, their duration, and the relevant student populations:
(a)Certificate III in Disability: This Certificate course involves 15 units of competence - 9 core subjects and 5 electives. There are four terms of part time training, and a further two week “field placement”. The total course time is 730 hours. Over the period of the anticipated course duration, the minimum weekly attendance involved is about 20 hours per week during training. Field placement involves approximately 40 hours a week. AAMS had approximately 12 enrolments for this course as at August 2012. At the time of the Tribunal proceedings there were approximately 53 enrolments.
(b)Diploma of Disability: The Diploma course involves 16 units, with 11 core subjects, 5 electives and two optional additional subjects. The course is delivered over a two year period. There are three training terms, and a five week field placement, in each year. The total course time is 1,645 hours, including the two field placement periods, and the optional subjects. AAMS had approximately 36 enrolments for this course as at August 2012. At the time of the Tribunal proceedings there were approximately 53 enrolments.
(c)Certificate III in Hospitality (Commercial Cookery): The course involves 26 core units, with 3 elective subjects. The course is delivered over a period of approximately 40 weeks and 4 terms, followed by a period of work placement. The total course time is about 1,160 hours. AAMS had approximately 5 enrolments for this course as at August 2012. At the time of the Tribunal proceedings there was a similarly small number of enrolments.
(d)Diploma of Hospitality: The course involves 23 core units, and 16 elective subjects The total course time is 1,292 hours, spread over a two year period, and includes a 5 week field placement period at the end of each year. AAMS had approximately 25 enrolments for this course as at August 2012. At the time of the Tribunal proceedings there was only a small number of enrolments.
The relevant NVR Act functions and powers
ASQA’s functions, apart from the registration of training organisations and the accreditation of courses, include promoting and encouraging the capacity of RTOs to provide VET courses, and compliance auditing.[13] ASQA has general powers that permit it to review, examine or audit the conduct and activities of any “NVR registered training organisation”. It may impose a range of sanctions on an RTO. Those sanctions include (i) amendment of registration conditions, (ii) variation of the scope of registration, (iii) directions to rectify any breach of a registration condition, (iv) directions to provide students with specific information, and (v) shortening, amending suspending or cancelling the RTO’s period of registration: see NVR Act ss 29, 36(1), 36(2), 38(1) & 39(1).
[13] NVR Act s 157(1)(d)
It is significant to note that although these various ASQA powers are described as “administrative sanctions” (see NVR Act Pt 2 Division 3 and s 36) their exercise does not expressly depend on an RTO’s non-compliance with its registration conditions. Given the breadth of ASQA’s statutory functions and powers, including the specific power in NVR Act s 36(2)(a) to give a written direction requiring compliance, it can readily be accepted that the extent of an RTO’s failure to comply with a registration condition could provide grounds to cancel or suspend its registration. But the specific statutory basis on which the valid exercise of ASQA’s cancellation power depends is actual satisfaction that the particular decision is “appropriate” in the particular circumstances: see NVR Act s 39(1). In the case of ASQA’s suspension power, whilst NVR Act s 38(1) is entirely permissive, the power must be exercised for a proper purpose and with regard to all relevant considerations. Those parameters for the valid exercise of the power imply a limitation analogous to the expressly stated criterion of appropriateness in NVR Act s 39(1).[14]
[14] In supplementary written submissions invited by the Tribunal, the Respondent suggested that the “appropriate to do so” criterion in NVR Act s 39(1) related to the fact that the subsection authorised cancellation for non payment of registration fees, and that this was not a mater relevant to the exercise of the suspension power in NVR Act s 38(1). I do not accept this suggestion. I consider the better view is that the “appropriate to do so” criterion in NVR Act s 39(1) flows naturally from the earlier inclusion of that expression in s 36(1), is not relevantly explained by the inclusion of non-payment as a permissive ground for cancellation and, as suggested by NVR Ac s 36(1), applies equally to the exercise of the suspension and cancellation powers.
The criterion of cancellation being “appropriate” necessarily involves considerations other than the bare characterisation of an RTO’s conduct or circumstances as “non-compliant” with its registration conditions. Satisfaction that any particular “sanction” is “appropriate” requires evaluation of the requirements of the relevant conditions, an identification of the precise nature of any non-compliance, an evaluation of the extent and significance of any relevant non-compliance, and an evaluation of the prospects and likely timing of effective remedial action. It is likely, where an RTO is already functioning as a VET course provider to overseas students, that a proper assessment of appropriateness will also involve consideration of the best interests of the RTO’s students.
The generality of the “appropriate” criterion expressed in NVR Act ss 36(1) & 39(1) suggests permissible variations of emphasis upon, but not complete or inflexible distinctions between, concepts of: encouragement, protection, deterrence and punishment, in ASQA arriving at the requisite satisfaction in any particular case.[15] This suggestion is confirmed by NVR Act s 40 which, “to avoid doubt”, expressly states that ASQA may take any of the enforcement actions contemplated by NVR Act Part 6 “in addition to, or instead of” exercising its sanction powers. The enforcement provisions in Part 6 of the NVR Act create offences and contraventions for various kinds of conduct. They contemplate the personal liability of an “executive officer” of an RTO where the officer “knew” that an offence or contravention would occur and failed to take all reasonable preventative steps.[16] They also permit ASQA to accept (and take action to enforce) a written undertaking from a person it considers has been involved in an NVR Act offence or contravention.[17]
[15] The breadth of the permissibly relevant considerations at least leaves open the possibility that the nature of the discretion is not entirely protective and could, at least in some circumstances, be exercised for the purpose of imposing punishment or seeking to deter further non-compliance: contrast Success Fast-Trak Pty Ltd v ASQA [2012] AATA 531 at [80].
[16] See NVR Act ss 133 & 134.
[17] NVR Act ss 146 – 147.
The conduct to which the enforcement provisions in Part 6 of the NVR Act apply does not directly include an RTO’s failure to comply with a registration condition or a failure to comply with an SNR standard.[18] However Part 6 does cover a range of conduct that may involve (more or less directly) breach of a registration condition. The offences and contraventions within Part 6 include the following:
(a)providing a VET accredited course, or issuing either a qualification or statement of competence relating to a VET course, that is outside the scope of an RTO’s registration: NVR Act ss 93, 94, 95 - 98
(b)issuing a certificate of qualification for, or a statement of attainment of a unit of competency relating to, a VET course without adequately assessing the student’s competence in satisfying the relevant qualification requirements: NVR Act ss 103 - 110.
[18] Breach of a registration condition involves a contravention (but not an offence) if the condition is of a kind prescribed by the regulations for the purposes of NVR Act s 111.
The preceding brief outline of the apparently relevant NVR Act provisions clearly evidences the diversity of the statutory powers and sanctions that are available to assist ASQA in the proper execution of its statutory functions. The range of sanctions that ASQA can impose, and the explicit contemplation that its various powers to sanction non-compliance are potentially partly cumulative rather than necessarily alternative[19], are both significant. Understood against the background of ASQA’s widely stated statutory functions, they underscore a legislative recognition of the considerable importance of vocational education and training and the knowledge, co-operation, skill and commitment and flexibility required to ensure effective regulation and the promotion and maintenance of proper training and assessment standards. ASQA has wide discretionary powers which, apart from inferences able to be drawn from the generality of its statutory functions, are disciplined only by wider concepts of “appropriateness”, “necessity” and “convenience”: see NVR Act ss 36(1), 39(1) & 157(7).
[19] See NVR Act s 40 - and compare NVR Act s 144 (relating to civil and criminal penalties).
The breadth of ASQA’s functions and powers, and the inherent flexibility of a criterion that depends only upon a subjective consideration that a particular action “is appropriate”, does not detract from the basic importance of compliance with the VET Quality Framework - as required by NVR Act s 22. But the fact that compliance is not an explicit criterion for the exercise of the sanction powers contained in ss 38 and 39 of the NVR Act, does implicitly recognise the complexity involved in the various components of that framework (see paragraph 3 above) and the myriad requirements contained within those components.
The ESOS Act framework for the Decisions under review
The ESOS Act permits ASQA (as a Ministerial delegate under s 170 of the Act) to impose sanctions (including suspension or cancellation) if it “believes on reasonable grounds that the registered provider … is breaching, or has breached, this Act, the national code” or a condition of its registration: ESOS Act s 83(1) & (3). ASQA’s 7 January 2013 notices of cancellation and suspension did not specify the particular grounds for the decisions. In a subsequent statement of reasons (dated 27 February 2013 and prepared for the purpose of these proceedings) ASQA indicated its reliance on certain alleged contraventions of the ESOS Act relating to record keeping, and non-compliance with standards 1, 2, 3, 4, 11 and 14 of the National Code.[20]
[20] Standard 1 relates to marketing information and practices. Standard 2 relates to information provided to students before enrolment. Standard 3 relates to enrolment formalities. Standard 4 relates to the use of education agents. Standard 11 relates to monitoring student attendance. Standard 14 relates to the sufficiency of educational resources, premises and staff.
The general permissive language in which the ESOS Act sanction powers are expressed necessarily suggests that neither the mere fact of non-compliance with the national code, nor a failure to comply with requirements of the ESOS Act, requires the exercise of either the suspension or the cancellation power. In this respect the proper exercise of those powers raises general considerations of the appropriateness of their exercise, in the totality of the relevant circumstances. In particular, for the purpose of the present proceedings, ASQA and AAMS agree that the Tribunal should proceed on the basis that the question of AAMS’s compliance with the SNR Standards, and its continued registration under the NVR Act, will dictate the result of AAMS’s application for the review of the January 2013 decisions under the ESOS Act. The basis of this agreement is: (i) the essential similarity between the relevant SNR Standards and the equivalent provisions in the National Code; and, (ii) the implicit view that AAMS’s past record keeping irregularities under the ESOS Act do not (in the light of the totality of the currently available information) provide a sufficient independent basis to warrant exercise of the suspension and cancellation powers.
Circumstances relevant to The Tribunal’s review
The potential breadth of the considerations relevant to the “appropriate” exercise of ASQA’s sanction powers under NVR Act ss 36 to 40, as well as ASQA’s ability to impose or vary conditions at any time during the period of an organisation’s registration, suggest that ASQA must always have regard to currently available relevant information. This is more clearly indicated by the general discretion NVR Act s 36(3) gives ASQA to “have regard to” an RTO’s conduct, and relevant circumstances, irrespective of whether or not they occurred either before or after ASQA contemplated the exercise of the sanctions power (and gave the RTO notice of that contemplation).
In Ivy Education Group Pty Ltd v Australian Skills Quality Authority [2013] AATA 138, Deputy President Handley decided that the Tribunal should exercise its review function by taking into account the state of affairs at the time of the review hearing. It should not confine its consideration to the state of affairs when ASQA made the reviewable decision. Both ASQA and AAMS agree that this is the correct approach for the Tribunal to take in the exercise of its review function in the present matter.
In addition, ASQA submitted that in exercising its review function the Tribunal could, by virtue of the effect of AAT Act s 43(1), exercise any of the powers and discretions that were available to ASQA under the NVR Act (and under the ESOS Act). That submission reflects the terms of s 43(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act), and was not contested by AAMS.
Events from audit to cancellation and review
There was a great deal of correspondence, and interaction, between AAMS and ASQA after the March 2012 audit. It relevantly began with
(a)ASQA’s 2 July 2012 notice of intention to cancel AAMS’s NVR Act registration
(b)AAMS’s 27 July 2012 response to ASQA’s notice of intention.
The March 2012 audit revealed a number of deficiencies on the part of AAMS. These included criticisms of its performance in meeting the relevant “data provision requirements” (relating to monitoring and reporting upon the quality of its services) and in its SNR compliance. The latter criticisms included: (i) accepting enrolments in the Disability Diploma by students who had not obtained pre-requisite competency qualifications; (ii) unsubstantiated trainer competencies; (iii) insufficiently monitored workplace attendances and unsubstantiated assessment strategies, particularly in relation to the workplace components of courses; and, (iv) inadequate recording of student attendances and progress. The ASQA 2 July 2012 notice of intended cancellation referred to previous correspondence with AAMS (as far back as May 2010) and complained that unsatisfactory matters noted in an earlier March 2011 audit had still not been appropriately rectified. The 2 July 2012 notice identified some of these matters (namely those listed as (i), (iii) & (iv) above) as amongst AAMS’s critical deficiencies. Those critical deficiencies also included issuing qualifications before the completion of required assessments.[21] Viewed against the background of the previous scrutiny of AAMS, the 2 July 2012 letter gives the impression that an underlying matter of principal concern was whether AAMS was conscientiously complying with its obligations in ensuring that its enrolled overseas students were genuinely undertaking appropriate courses of training and complying with their visa conditions. This impression primarily derives from the combined criticism of AAMS’s: (i) failure to observe enrolment pre-requisites; (ii) unsubstantiated assessment practices; and, (iii) poor monitoring, recording and reporting of student attendances.[22]
[21] The recommendations were also critical of AAMS’s advertising. But the criticisms of the advertising were substantially consequential on the substance of the other substantive criticisms of AAMS’s enrolment and training and assessment practices.
[22] The impression is also apparent in the 28 September 2012 briefing paper that was provided to the ASQA Commissioners following an unannounced audit of AAMS ESOS Act compliance on 26 September 2012. The results of this audit evidence ASQA’s concern that AAMS was irregularly enrolling people in English Language Intensive Courses for Overseas Student (“ELICOS” courses) when they were not genuine students.
AAMS’s July 2012 response to ASQA provided some 570 pages of information. It included: (i) a 21 page table with an itemised response to ASQA’s audit criticisms, with details of AAMS’s response and supporting evidence; (ii) revised course structure documents; (iii) a revised Student Handbook; (iv) a revised 72 page “Policies and Procedures” handbook; (v) a staff professional development calendar for the period from July to December 2012; and, (vi) a 7 page table with specific responses to the student attendance irregularities ASQA had identified.
The relevant matters that emerge from this material include the following:
(a)AAMS’s claim that the irregularity involved in issuing Diploma enrolments to students who had not obtained all pre-requisite subjects arose because of an arrangement that had been sanctioned by the previous Vet regulator (“VETAB”) but would be discontinued in response to ASQA’s concerns;
(b)AAMS’s acceptance of responsibility for previous irregularities in relation to poor recording of student attendance and progress, as well as the issue of qualifications before the completed documentation of competence assessments, and a claim that those past irregularities would be overcome by a combination of: (i) the appointment of a new principal; (ii) providing professional development workshops to address reporting and compliance issues; and, (iii) the engagement of a compliance consultant to conduct internal audits.
In a further report dated 30 August 2012, ASQA considered AAMS’s detailed response to the March 2012 audit findings, and the 2 July 2012 notice. In this report ASQA somewhat modified its description of AAMS’s critical non-compliance issues. There was less emphasis upon the past irregularities in AAMS’s monitoring and reporting of student attendances, and more emphasis on scrutinising details of its training and assessment strategies, including the qualifications and suitability of its training staff. ASQA particularly queried an apparent arrangement under which AAMS had contracted to have another “non RTO” organisation deliver training and assessment of its disability courses.
Following the August 2012 report ASQA proceeded to implement its foreshadowed action of imposing sanctions on AAMS. This involved the following matters:
(a)ASQA’s 12 September 2012 decision to impose sanctions
(b)ASQA’s 8 October 2012 notices of cancellation, and proposed suspension, of AAMS’s NVR Act registration. (The notices substantially reflected the concerns expressed in the 30 August 2012 audit report.)
(c)ASQA’s 19 October 2012 notice of suspension of AAMS’s NVR registration (with effect from 23 October 2012).
(d)AQSA’s 26 October 2012 letter notifying AAMS of the proposed cancellation of its ESOS Act registration. (The notice was principally concerned with the appearance that AAMS had enrolled people in “ELICOS” courses who were not genuine students requiring intensive English language courses.)
The material that was available to ASQA up to October 2012 was interpreted by it as justifying continuing scepticism about AAMS’s SNR compliance. In particular, ASQA was doubtful that AAMS had really ceased the practice of accepting diploma enrolments before students had obtained the relevant pre-requisite qualifications. It was also not satisfied that AAMS had in place effective strategies for workplace training and assessment which properly reflected the competency requirements of the relevant courses. (These concerns are particularly evident in the record of ASQA’s 12 September 2012 decision, which resulted in the October 2012 issue of the NVR Act notices of the cancellation and suspension decisions.)
After it received ASQA’s October 2012 notices, in early November 2012 AAMS finalised the appointment of its new principal, Mr Coates.[23] AAMS also commissioned a compliance report from independent consultants (Mr Stephens and Ms Briggs). Their 30 November 2012 report confirmed that AAMS had (i) ceased to enrol students in the Disability Diploma course where they had no attained the pre-requisite qualifications; and, (ii) terminated the arrangement under which it had proposed to have a “non RTO” entity deliver disability training and assessment. AAMS submitted their 30 November 2012 report to ASQA.
[23] Mr Coates has a range of AQF Diploma and Certificate qualifications in Management, Vocational Training and Assessment and Quality Auditing. He is a former head of the hospitality faculty of the Sydney International College of Business Pty Ltd. Subsequent to that he held positions as the Director of Studies, first at Macquarie Education Group Australia Pty Ltd and, immediately prior to his appointment by AAMS, at the Australian Institute of Commerce and Language Pty Ltd.
At about the same time, AAMS appears to have prepared a detailed 35 page table in which AAMS itemised ASQA’s audit criticisms and provided specific responses, recording the action it had taken, or was in the process of implementing.
There were still further developments. They included the following:
(a)ASQA’s 7 January 2013 notices of cancellation, and suspension, of AAMS’s ESOS Act registration (with effect from 31 January 2013).
(b)A further ASQA audit conducted on 4 & 5 February 2012, and led by one of ASQA’s senior auditors, Ms Giselle Mawer. (AAMS was critical of the narrow scope of this audit, and the reliance that had been placed on it. The pro forma audit verification form contemplated that the audit team would review the compliance evidence provided by AAMS and “may” interview current and past students, employers, clients, trainers and assessors, as well as seek feedback from community and industry representatives. One of AAMS’s complaints was that ASQA had not in fact sought any feedback of the latter kinds, and that the few student interviews the audit team had conducted were perfunctory. The criticism was that the audit team had made no real effort to satisfy itself as to whether AAMS training and assessment activities were in fact of a high standard and that it was producing appropriately qualified and competent students. In this respect AAMS’s complaints about the audit repeated views that its chief executive had expressed to ASQA in a letter he wrote on 12 October 2012.[24] AAMS’s further complaint was that ASQA’s audit criticism of its work placement records and assessments had been expressed without regard to relevant AAMS records which, according to Mr Coates (in his 14 May 2013 affidavit), the ASQA auditors had not examined.)
[24] In that letter AAMS claimed that previously ASQA’s auditors had acknowledged the high quality of AAMS’s disability assessments. Practically all its past disability course students were said to be working in the field and AAMS claimed to have been receiving very positive feedback from the field placement agencies who were happy to hire students who had completed their courses.
(c)A draft a non-compliance report dated 12 February 2013, prepared by Ms Mawer after the audit visit to AAMS on 4 and 5 February 2013
(d)A revised non-compliance report dated 21 March 2013, also prepared by Ms Mawer, which took into account additional information AAMS had provided.
(e)Revised “Training and Assessment Strategies” (the basic information from which I have summarised in the Schedules to these reasons) that made various alterations to AAMS’s course details, in response to concerns expressed in the ASQA audit reports. The changes included revised course structures and delivery sequence, some changes to elective and optional units of competency, and greater specificity about the modes of assessment.)
(f)Revised Field Placement Handbooks AAMS prepared for its Disability Certificate and Diploma courses in February 2013. (It is readily apparent from the contents of these documents that their revision was part of the remedial action AAMS took in restructuring its courses in response to ASQA’s criticisms. The revised Field Placement Handbooks reflected the revised course structures – particularly the removal of units of competency from the Disability Diploma course where they were in fact pre-requisite qualifications for the Diploma enrolment. The Field Placement Handbooks detailed AAMS’s procedures involved in arranging student placements, the respective responsibilities of AAMS’s field placement co-ordinator, workplace supervisors and students. Particular changes in these handbooks included more specific statement of the essential competencies required in each unit, and the inclusion of a pro forma log to record all workplace inspections and assessments.)
(g)Revised student field placement work contracts which more specifically addressed the performance criteria and the tasks that students would be required to undertake in the course of the field placements, in order to demonstrate the required competencies.
(h)A revised form of "Field Placement Memorandum of Understanding" which AAMS entered into with every agency with which students were placed for practical training. The revised agreement stipulated the minimum qualifications required of all workplace supervisors. It stipulated that during work placement periods each trainee was required to complete the activities listed in the Field Placement Handbook, that the tasks they undertook were to be recorded, and that supervisors were required to complete reports after a student had demonstrated the necessary essential competency skills.
(i)A further non-compliance report Ms Mawer prepared in May 2013.
(j)An updated non-compliance report Mr Stephens prepared for AAMS in May 2013.
(k)Further information, principally relating to aspects of its course assessment strategies, that AAMS provided to ASQA in about May 2013. (This information particularly related to the units of competency to which ASQA had directed criticisms of AAMS in relation to the adequacy of its assessments practices. Those units are identified by shaded entries in the Schedules to these reasons.) The additional information that AAMS provided typically included:
(i)an “Assessment Tool Checklist” - a document intended to provide a cross check framework for the compliance adequacy of the assessment strategy contemplated for the particular unit of competence;
(ii)a “Trainer marking guide” - a document that appears be a development of information that was previously included in the Field Placement Handbook. This information identifies the required performance criteria in the unit of competence and “maps” those requirements to the proposed assessment tasks;
(iii)an “Assessment Record” - a document which, taken in its own, is ambiguously brief, and lacking specific correlation to individual assessment tasks;
(iv)specific case studies to be used in proposed assessments;
(v)pro forma “Marking Form(s)” to be used to assess student competency in relation to aspects of the case study tasks;
(vi)detailed “Workplace/Third Party - Trainer Instructions” to workplace supervisors in relation to the actual activities in which a student was required to be involved in order to be able to acquire and demonstrate required competencies;
(vii)a pro forma “Third Party Observation - Person being supported/Work Place Supervisor” report to be completed by work place supervisors or actual workplace clients;
(viii)pro forma “Marking Form(s)” to be used to provide a record of a student’s satisfactory performance and assessment of required competencies.
(l)The formulation of a schedule for the comprehensive review and improvement of the assessment tools used across the range of units of competence involved in AAMS’s courses.
(m)Updated information about the features, and proposed use, of a “training room” AAMS intended to use to simulate the physical environment in a workplace situation. This training room was to be available to be used in the delivery and assessment of disability course units.
(n)An Annual Report that AAMS provided to ASQA in June 2013.
The additional material to which I have referred, and the information it contains, alters the state of affairs that was apparent when ASQA first undertook its “compliance audit” activities in March 2012. Some of the most recently available information also differs from material that Ms Mawer’s limited “non-compliance” reports took into account in February, March and (to a lesser extent) May 2013.
The matters to which I have referred in paragraphs 28, 29, 30(e), 30(f) and 30(j) to 30(m) above reflect considerable, and apparently genuine, attempts by AAMS to respond appropriately to ASQA’s various criticisms. The activity, and the commitment and effort that it evidences, is consistent with Mr Coates evidence. His evidence was that after his appointment as principal in November 2012 he conducted an organisational review of AAMS. He understood that his role, as instructed by AAMS’s directors, was to ensure not only that AAMS was SNR compliant but that it merited a reputation as a quality provider of vocational education and training.
The Annual Report document to which I have referred in paragraph 30(n) warrants specific comment, particularly in the light of AAMS’s criticisms of ASQA’s February 2013 audit inspection and the narrow scope of Ms Mawer’s subsequent non-compliance reports. In its original audit report in March 2012 one of ASQA’s criticisms was that AAMS had not complied with the Data Provision Requirements of the VET Quality Framework. These involved obtaining relevant feedback from students and employers about an RTO’s performance. There are standard form questionnaires, in a form apparently sanctioned by the National Centre for Vocational Education Research and based on a format used under the “Australian Quality Training Framework” (i.e. the pre 2011 equivalent to the SNR standards). AAMS’s June 2013 “Quality Indicator annual summary report”, was based on responses to these standard form questionnaires. The Report indicated three material matters: (i) that the survey response rates were between 73% and 77% of the questionnaires issued; (ii) 93% of students either strongly agreed or agreed with questions intended to establish whether AAMS was delivering its courses at an appropriate standard; and, (iii) the reported student satisfaction was higher than in the preceding year.
AAMS sought to emphasise the highly favourable view of its performance that emerged from the 2013 Annual Report. In so doing its position was that questions of compliance should be addressed as matters of substance, rather than form or inference. AAMS contended that the quality of its training and assessment services could not properly be assessed without regard to the outcomes of those services - and yet that was not something ASQA had undertaken, particularly in connection with the February 2013 audit.[25]
[25] Ms Mawer, in my opinion, partly conceded the force of this criticism. She accepted that the primary purpose of the SNR requirements was to ensure the achievement of satisfactory “outcomes”. The limited audit inspection task she had carried out in February 2013 was not directed at assessing outcomes and was more limited than the kind of audit that it would have been appropriate to undertake in connection with an application for renewal of registration. She accepted that such an audit would involve some enquiry into the quality of the training and assessment outcomes for students.
The real significance of the favourable view presented in the 2013 Annual Report depends on the validity of a comparison between the information that can properly be derived from the Report, and the specific SNR requirements. In relation to the former, the information sought from respondents in the standard questionnaires which underlie the Annual Report, is much less specific than the prescriptive requirements in the performance criteria (in the relevant AQF Training Package provisions). The questions in the standard questionnaires typically invite only impressionistic responses (strongly agree, agree, disagree, strongly disagree) to approximately 35 questions which are all framed at a level of generality in their enquiry about the quality of AAMS’s services. This level of generality can be very informative about the respondents’ general perceptions of the training experience. It is not likely to be directly informative about issues of compliance, or non compliance, with specific SNR provisions. But, depending upon the nature and extent of any non compliance, the appearance that the relevant student (and employer) populations are highly satisfied with the quality of an RTO’s services is a necessary, and potentially very favourable, consideration it reaching a view as to what sanction (if any) is “appropriate” to be imposed on an RTO.
Difficulties in capturing the materiality of complex and changing circumstances
Up to this point I have endeavoured to summarise those aspects of the available information that appear to be most material to the exercise of the Tribunal’s review function. Views may differ about whether or not the task I have attempted, of selecting from the complicated compliance requirements and narrative of events the matters of apparently greatest significance, has been adequately carried out and properly recognises the more material circumstances. The task, however, is one of some difficulty. That difficulty might be reduced in future matters by a greater degree of assistance from the parties, and particularly from ASQA in the organisation and presentation of material to the Tribunal. In the present matter there were at least 5,000 pages of material submitted. Within that total number of pages about 2,700 pages were merely described collectively as “material” that had been provided by AAMS, or collected by ASQA.
The obligation cast upon decision makers by AAT Act s 37(1) is to lodge with the Tribunal documents that are “relevant to the review of the decision”. This criterion of relevance requires some genuine discrimination in the material that is provided. The degree of discrimination that can appropriately be achieved is a matter of judgment. I accept that a statutory criterion as to whether or not a particular decision is “appropriate” is one of considerable generality and justifiably encourages an expansive view to be taken about areas of potential relevance. However this reinforces, rather than diminishes, the necessity for material to be presented to the Tribunal, and to be available to the parties themselves, in a way that permits the true relevance and materiality of documents to be perceived, and facilitates their ready identification, location and retrieval. That necessity is itself essential for the Tribunal to be able to achieve its function of administering a mechanism of review that is “fair, just, economical, informal and quick”: AAT Act s 2A. It is also a necessity that falls within the “best endeavours” obligation to which decision makers are subject in review proceedings before the Tribunal: see AAT Act s 33(1AA).
I have made these comments for the purpose of encouraging more effective future management of these types of matters, rather than to convey pejorative criticism of ASQA’s participation in the present matter. The reality is that ASQA has specific functions, skills and expertise, and administers a regulatory regime across a wide range of disciplines. There is much complexity in the statutory function, in the regulatory requirements, and in satisfactorily arriving at an “appropriate” decision in any particular case. The Tribunal has, in the exercise of its review function, all of ASQA’s statutory powers. But it does not necessarily have, and must rely on the parties (particularly ASQA) to contribute, the expertise and knowledge that comes from day to day familiarity with the responsibilities of the primary administrative tasks with which ASQA is charged. If the Tribunal’s review jurisdiction over ASQA’s decisions is to be both a true merits review (ie neither unjustifiably critical of, nor merely deferential to, ASQA’s assessments), and also “economical, informal and quick” it is very important that the material presented to the Tribunal is conducive to a ready identification of the substantial matters likely to be materially determinative in the review proceedings, and the evidence that principally bears on those matters.
In my opinion this requires a greater level of discrimination, and at an earlier stage of the proceedings, than was apparent in the present matter. There are at least three areas where greater efforts could be made to increase the efficiency and fairness of the review process. The first is to recognise the potential for too ready a conflation of the ideas of non-compliance and the statutory criterion that the relevant sanction decision must be considered “appropriate”. Non-compliance in relation to some matters may be strongly indicative of the appropriateness of cancellation or suspension. But the strength of the indication must always depend on the nature and extent of the non compliance. ASQA’s reasons for decision, and its statements of contentions, could usefully enhance the review process by a more explicit identification of the particular non-compliance issues that materially inform the appropriateness of the relevant sanction decision, and the actual reasons why they materially contribute to that decision. This gives rise to the second area where a greater process of discrimination could be applied. The task of discriminating categorisation of non-compliance issues that I imposed on ASQA (see paragraph 41 below) encourages a discipline that could significantly enhance the efficiency of the review process if it was either voluntarily assumed, or imposed by the Tribunal, at an early stage of the review proceedings.[26] The third area where greater effort could usefully be made is in objectively taking into account the real materiality of circumstances and information that change after the decision under review was made.[27]
[26] There are two points to be made. The first is that there is ordinarily no utility (in terms of enhancing the efficiency and fairness of the review process) in relying upon the same factual matters to ground complaints of non-compliance with multiple SNR provisions. If there is, in a particular case, a real justification for such apparent duplication, that justification should be expressed clearly, and not left to be surmised from material that is otherwise needlessly oppressive in its complexity. The second point involves the matters I have addressed in paragraphs 55 to 61 below. The point to be made is that the discipline of attempting to assess the comparative significance of various deficiencies will inevitably result in greater focus on the nature and extent of the evidence relevant to the validity and reliability of the assessment.
[27] The point to be made here is that appropriate corrective actions may have an ambiguous relevance. They may reflect a complete response to past irregularities, and render the latter of little relevance to the “appropriateness” of a prospective sanction. Alternatively, they may be viewed as a belated and coerced development that detracts from confidence in the capacity and suitability of the RTO, its management and staff. The choice between these two alternatives can only be made after a proper identification of the relevant primary facts.
Putting the non-compliance issues into focus
The nature of the Tribunal’s review task, and the cumulative developments I described in paragraphs 21 to 35 above, make it important to highlight the matters of principal importance in assessing the current “appropriateness” of the contentious cancellation and suspension decisions. In order to facilitate that process I required ASQA to provide a list of the non-compliance issues on which it relied, and to indicate their comparative importance in the determination of AAMS’s review applications. ASQA complied with that requirement in the Statement of Facts and Contentions it lodged with the Tribunal. That document contained a 16 item ranking of the importance and seriousness of AAMS’s asserted SNR non-compliance issues. The list forms the basis of the summary I have set out in the next section of these reasons.
In order to bring a further level of discrimination to the contentious SNR compliance issues, at the beginning of the review hearing I required the parties to prepare an agenda for a joint conference between their respective expert witnesses - Ms Giselle Mawer (a very experienced ASQA lead auditor) and Mr Christopher Stephens (a former VETAB auditor who carries on business as an independent compliance consultant and had been retained by AAMS to assist in responding to ASQA’s audit compliance concerns). I settled the agenda in discussion with the parties’ representatives, and with the benefit of some input from Ms Mawer and Mr Stephens. I then required Ms Mawer and Mr Stephens to confer, with a view to attempting to identify: (i) whether there were any factual matters of compliance (or non-compliance) on which they could agree; (ii) the extent of any remedial activities that would reasonably be required to achieve SNR compliance; and, (iii) the relative significance of the identified non-compliance issues to the appropriate exercise of the cancellation and suspension powers.
Ms Mawer and Mr Stephens conferred for several hours, and produced a preliminary response to the agenda with which they had been provided. At the end of their conference period they reported that they had reached something of an impasse in their respective views. This impasse did not really involve significant differences about the primary facts and circumstances involved in AAMS’s course delivery. What it did involve was a significant disagreement about whether or not the contentious deficiencies that Ms Mawer had remarked upon in her revised “Non Compliance Report” of May 2013, really involved either SNR non-compliance at all, or a degree of non-compliance that could properly influence the appropriateness of either the cancellation or suspension decisions.
The hearing then proceeded with Ms Mawer and Mr Stephens giving evidence concurrently, on a topic by topic basis in the order of priority that they had canvassed in their joint discussions. This process, whilst it began (and proceeded for a time) with some laboriously detailed discussion, eventually succeeded in bringing into focus both the principal thrust of ASQA’s criticisms of AAMS, and the nature and extent of the differing views about the significance of those criticisms. At the conclusion of their concurrent evidence session I expressed my appreciation to both Ms Mawer and Mr Stephens for the candid and helpful manner in which they participated in the hearing process. I repeat my appreciation for their considerable assistance to the efficiency of the hearing.
ASQA’s contentions about AAMS’ current non-compliance
Since early 2013 the operative SNR provisions are those contained in the Standards for NVR Registered Training Organisations 2012. There are no relevant differences between those standards and the previous provisions in the similarly titled standards that were in force from 1 July 2011 until early 2013.
In its Statement of Facts and Contentions, and as developed in Ms Mawer’s revised “Non Compliance Report” and her oral evidence, the sixteen non-compliance issues on which ASQA relies principally involve three of the SNR Standards. These provisions are as follows
(a)SNR 15: the essential requirements relating to the quality of training and assessment. (ASQA asserts AAMS’s non-compliance with substantially the whole of the components of SNR 15 - see paragraph 47 below.)
(b)SNR 16: the requirements for an NVR registered training organisation to adhere to relevant principles of access and equity. (ASQA asserts AAMS’s principal non-compliance with SNR 16.4 and 16.5 - see paragraph 106 below.)
(c)SNR 17: which requires an NVR registered training organisation to have appropriate management systems. (ASQA asserts AAMS’s principal non-compliance with SNR 17.1 and 17.4 - see paragraph 115 below.)
ASQA relies on four other non-compliances issues. They involve SNR 18 (governance arrangements), SNR 19 (regulatory co-operation with ASQA), SNR 20 (legislative and regulatory compliance) and SNR 24 (accurate marketing and advertising). However, these non-compliance issues involve substantially the same factual matters as those relied on to substantiate the asserted non-compliance with SNR 15, 16 & 17. The one qualification to that proposition concerns SNR 20 (legislative and regulatory compliance). ASQA complains about the fact that AAMS appears to have issued Certificates of Enrolment after the suspension of its registration in October 2012.
SNR 15 - training and assessment issues
SNR 15 is the principal SNR requirement of the “essential standards for continuing registration”.[28] It requires an organisation to provide quality training and assessment. It covers a range of topics, including the quality of staff and materials, assessment procedures, and commitment to monitoring for the purpose of continuous improvement in the delivery of services. ASQA regards AAMS as non-compliant with most aspects of SNR 15.
[28] SNR 4 to 14 deal with the Essential standards for initial registration. SNR 15 to 25 deal with the Essential standards for continuing registration. The standards for initial registration broadly focus on the prospective RTO’s capacity and strategies for complying with the AQF. The standards for continuing registration focus on the actual performance of the RTO.
The full terms of SNR 15 are set out below. The shaded text of SNR 15.1 text indicates ASQA’s current acceptance that AAMS complies with that aspect of the standards. The underlined expressions are some of the more material provisions defined elsewhere (in SNR 3). The [bracketed] numerals in bold font indicate the comparative significance that ASQA attached to AAMS’s asserted non-compliance with the other provisions of SNR 15.
SNR 15 - The NVR registered training organisation provides quality training and assessment across all of its operations, as follows:
15.1The NVR registered training organisation collects, analyses, and acts on relevant data for continuous improvement of training and assessment.
15.2Strategies for training and assessment meet the requirements of the relevant
[3]Training Package or VET accredited course and have been developed through effective consultation with industry.
15.3Staff, facilities, equipment and training and assessment materials used by the
[2] NVR registered training organisation are consistent with the requirements of the Training Package or VET accredited course and the NVR registered training organisation’s own training and assessment strategies and are developed through effective consultation with industry.
15.4 Training and assessment is delivered by trainers and assessors who:
[5] (a) have the necessary training and assessment competencies as determined by the National Skills Standards Council or its successors; and
(b)have the relevant vocational competencies at least to the level being delivered or assessed; and
(c)can demonstrate current industry skills directly relevant to the training/assessment being undertaken; and
(d)continue to develop their vocational education and training (VET) knowledge and skills as well as their industry currency and trainer/assessor competence.
15.5 Assessment including Recognition of Prior Learning (RPL):
[1](a) meets the requirements of the relevant Training Package or VET accredited course; and
(b)is conducted in accordance with the principles of assessment and the rules of evidence; and
(c) meets workplace and, where relevant, regulatory requirements; and
(d) is systematically validated.The key element in SNR 15 is that of compliance with the “Training Package” requirements relevant to the particular AQF qualification. A “Training Package” is a nationally endorsed, integrated set of competency standards, assessment requirements, AQF qualifications, and credit arrangements for a specific industry, industry sector or enterprise.” It will characteristically specify “units of competence” for particular components of an AQF qualification, their “elements”, “performance criteria” and “required skills and knowledge”, as well as provide “advice on assessment”. That assessment “advice” may, however, actually be prescriptive in requiring some competencies to be assessed in a workplace environment. The “elements” of a unit of competence are the essential skill or knowledge that the student must be assessed as having acquired. The “performance criteria” are the activities whose successful completion provides evidence for the assessment that the student has attained the relevant element of competence.
The broad thrust of SNR 15.2 to 15.4 is that an RTO’s strategies (SNR 15.2), physical resources (SNR 15.3) and personnel (SNR 15.4) must be sufficient to facilitate students achieving the relevant competency outcomes. SNR 15.5 is directed at the RTO’s actual performance in relation to assessing whether a student “can perform to the standard expected in the workplace”[29] as expressed in the relevant “Training Package”.
[29] SNR 3 definition of “assessment”.
An RTO’s assessment activities must be carried out in accordance with “the principles of assessment” and “rules of evidence”. The two concepts are closely related. One relates to the criteria of assessment. The other relates to the general sufficiency of the evidence to satisfy those criteria. In order to satisfy the “rules of evidence” a student’s evidence of competence must be authentic (ie their own work), current, sufficient in quantity and valid in its content. The concept of “validity” is included as one of the four required components of the “principles of assessment”. The principles of assessment used by an RTO must be fair, flexible, valid and reliable. These concepts, as explained in SNR 3, have the following qualities:
(a)Fairness: clear communication about the nature of the assessment and its result, including adjustments appropriate to the student’s needs and characteristics.
(b)Flexibility: recognition of a students’ needs, support continuous competency development, and a willingness to recognise competencies “no matter how, when or where they have been acquired”.
(c)Validity: the extent to which inferences about competence can justifiably be drawn from particular performance evidence. It is related to the concept of the intrinsic “reliability” of the assessment tool, but it requires regard to the nature and circumstances of the particular student, and the particular purpose of the assessment.
(d)Reliability: the estimated accuracy or utility of a task in providing evidence from which inferences of competence may justifiably be drawn.
This discussion of the broad parameters of SNR 15 illustrates that the notion of meeting the requirements of a Training Package has both an element of simplicity and one of considerable complexity. Ultimately, of course, an RTO cannot comply with the competency requirements of a unit of competency within a Training Package qualification, unless it implements appropriate training and assessment standards. But the complexity of the “elements”, “performance criteria” and assessment scenarios and principles conveys the prospect of scope for reasonable differences of view about the extent to which conduct and practices in any particular instance either demonstrate non-compliance at all, or non-compliance of sufficient extent to make cancellation of RTO’s registration an “appropriate” sanction in the circumstances.
In the present matter ASQA’s complaints of SNR 15 non-compliance (as ultimately expressed in Ms Mawer’s February, March and May 2013 reports) involved a range of matters - including the following:
(a)lack of evidence of effective industry consultation in the development of AAMS’s training and assessment strategies and facilities;
(b)concern about the extent to which AAMS’s courses contained appropriate elective units and accommodated the needs of students who received recognition for other AQF competencies and were not required to undertake the whole of the relevant AAMS course;
(c)deficiencies in obtaining appropriate police record checks before students were accepted for enrolment;
(d)concern about the adequacy, and the actual use, of the simulated work place training facility for AAMS’s disability courses;
(e)inconsistencies in AAMS documentation - particularly in some aspects of the revised Field Handbooks and the Training and assessment strategies; and,
(f)scepticism that AAMS had sufficient staff and dissatisfaction that at least some members of AAMS’s training staff had demonstrated appropriate levels of competence to deliver training and assessment services.
Some of ASQA’s criticisms were expressed at a level of generality, in the sense that they were not directly related to particular “Training Package” requirements, or to individual units of competence. In the Schedules to these reasons I have shaded those units of competence in each of AAMS’s courses where ASQA’s criticisms were explicitly linked to particular units. That shading indicates the comparatively small number of units that seemed to have been relied on as demonstrably evidencing non compliances sufficient to make it appropriate to cancel AAMS’s registration.
In addition, some of ASQA’s criticisms of AAMS relate to matters that are more relevant to evaluating the desirability and practicality of proposals for “continuous improvement” than they are to the appropriateness of imposing a sanction such as cancellation of registration. I would include in this category most of the criticisms summarised in paragraph 53 above.
In relation to paragraph 53(a) (industry consultation) it is perhaps inherent in the contents of SNR 15.2 and 15.3 that primary emphasis should be placed on the question of compliance with substantive “Training Package” requirements. At least implicitly, the requirement for industry consultation is a means to an end, in ensuring the attainment of the relevant quality of training and assessment. On that basis, a perceived lack of industry consultation would not itself be likely either to require, or warrant, cancellation or suspension sanctions - at least not where ASQA accepts that AAMS complies with SNR 15.1
In relation to paragraph 53(b) above, Ms Mawer expressed some concern about the difficulties of structuring and coordinating training activities where enrolled students had already obtained relevant certificates of attainment and competency from other institutions, in relation to some of the unit of competency requirements. This matter can arise because there are a number of units of competency which are either core or elective subjects for different qualifications within the Australian Qualifications Framework. Where the matter arises the relevant training institution simply must recognise the certificate of attainment. However, Ms Mawer raised the point that where particular students had credits (that is existing certificates of attainment) for the relevant unit of competence, timetabling issues can arise against a background of an overseas student’s visa conditions. The criticism Ms Mawer made was that it created potential difficulties for students who had already obtained relevant competency if they were required to attend the whole of the particular course, in order to satisfy their visa conditions.
Mr Stephens’ response to these criticisms was that they had nothing whatsoever to do with the requirements of SNR 15.2. Ms Mawer ultimately tended to recognise the force of this criticism and suggested that the appropriate standard was SNR 16.1. I must say that I do not really accept either that suggestion or, indeed, the substance of this particular criticism. I recognise that the timetabling and coordination of an efficiently structured course may involve particular difficulties where the student population has varied degrees of existing competencies. Those difficulties give rise to practical considerations that may be significant in relation to the overall efficiency of AAMS, and the needs of particular students. However, in the absence of specific information about the depth, extent and nature of any particular problems that may have arisen in the past, or are likely to exist in the future, I do not have a factual basis to justify a conclusion that this is a matter that reflects to any significant extent to the disadvantage of AAMS on an overall assessment of the appropriateness of continuing its registration.
The criticism in paragraph 53(c) (police record checks) was essentially purely procedural, and the subject of unresolved dispute between Mr Stephens and Ms Mawer as to whether it was a requirement that related to enrolment, as distinct from work placement. At least in the absence of clear evidence of the precise nature of the Training Package requirement, and positive evidence that, in a significant number of instances, AAMS was placing inappropriate students in work place environments, any irregularity in relation to obtaining these kinds of checks would not be a matter likely to inform relevantly an assessment of the “appropriateness” of imposing a cancellation sanction.
In relation to paragraph 53(d) above, the complaint Ms Mawer made was about the simulated training facilities provided at AAMS. Since the audit AAMS had established a new training room. Numerous photographs of the facilities were tendered. In the light of that additional information it emerged that Ms Mawer accepted that this room was equipped with appropriate features and equipment. She also accepted that it was available to be used when required, and that it would require to be used in only a very small number of the units of competence that AAMS delivered and assessed. In these circumstances her ultimate criticism could not be regarded as involving anything more than scepticism that the simulated training room would be used effectively by AAMS.[30] That scepticism merges with ASQA’s concern about the adequacy of AAMS’s actual assessment practices - a matter which became, in practical reality, the main focus of ASQA’s evidence.
[30] Ms Mawer suggested, based on her recollection of conversations with some students and with Mr Coates, that AAMS had a policy of not using the room, because of risk management concerns in the use of its various items of equipment. I think it is inherently unlikely that AAMS would have incurred the expense of setting up facilities that it did not intend to use, and suspect that Ms Mawer has misunderstood whatever information was conveyed to her. In any event Mr Coates provided the timetable for the prospective use of the training room and said that it would be used as and when required.
In relation to paragraph 53(f) (AAMS training staff competence) ASQA’s original complaint about non-compliance with SNR 15.3 and 15.4 was that AAMS had too few trainers and they had an excessive workload. Ms Mawer said there was a suggestion of recruitment of new training staff, but complained that this had not been the subject of any specific evidence. In fact there was evidence of the recruitment of two new trainers in March and April 2013. Mr Coates gave evidence that subsequently those two trainers and in fact been replaced by two further trainers. (Both of whom are current part-time trainers.) Ms Mawer’s May 2013 report observed that, in her opinion, AAMS had not demonstrated staff competence for all units and, in particular, had not shown that the staff concerned had completed a minimum of 2 years full time industry experience (an asserted “ACWA” (Australian Community Workers Association) requirement). These particular criticisms are difficult to relate to the more general actual content of SNR 15.4 (the assertedly relevant standard). AAMS in fact provided comprehensive evidence of its relevant staff qualifications, and Ms Mawer’s evidence did not really go beyond the generality that competence was “not demonstrated” for “a number of allocated units”. That generality is, to my mind, not meaningfully informative of any assessment about the appropriateness of any sanction decision. Furthermore, in response to one of Ms Mawer’s specific criticisms, Mr Stephens said that Ms Mawer was in error in asserting that there was any ACWA requirement for a minimum period of 2 years full time industry experience. When all these matters are taken into account (with the Annual Report to which I have referred in paragraph 33) I am not satisfied there is a satisfactory evidentiary basis for ASQA’s assertions of AAMS’s non-compliance with SNR 15.3 and 15.4.
In the light of what I have already said, the real practical substance of ASQA’s complaints about AAMS’s non-compliance with SNR 15 focussed on SNR 15.5 and AAMS’s strategies and practices in relation to assessment. This focus included the complaints about the matters to which I have referred in paragraph 53(e) (asserted inconsistency in relevant documentation). The comparative priority of the SNR 15.5 issues was reflected in ASQA’s Statement of Facts and Contentions, and in the approach that both Ms Mawer and Mr Stephens adopted in the course of their evidence in the review proceedings.
Certificate III - Disability – competency “CHCICS301 Provide Support to meet personal care needs”
A particular focus of ASQA’s criticisms was AAMS’s assessment strategy for this unit of competence in the Certificate III Disability course. By the time of the Tribunal hearing AAMS’s assessment materials for this unit had reached their third, or perhaps fourth, iteration. The revised Field Placement Handbook that AAMS had prepared in February 2013 (see paragraph 30(f) above) included a brief outline of the required performance criteria, some information about workplace assessment, and some basic requirements in relation to recording evidence of tasks undertaken and assessments completed. A revised version of specific assessment task materials, together with a trainer marking guide was prepared by AAMS in March 2013. This revised material introduced a number of changes, including specific incorporation of the “elements” and “performance criteria” from the Training Package requirements, and a much more detailed provision for recording the attainment of competency in relation to the various performance criteria. A further revised version, produced in April 2013 altered the presentation of the case study included in the assessment materials. These alterations included more specific instructions about the nature of the assessment task, and a greater deal of specificity in outlining the expected response to the components of the case study problem. The progression through these consecutive versions of the case study, and its associated assessment materials, including those dealing with work place assessment, appears to reflect a very detailed, and quite conscientious, attempt to provide an appropriately rigorous assessment regime.
Ms Mawer said that the case study component of the assessment, whilst inherently appropriate as a training strategy, could not provide a meaningful or realistic forum for assessing some of the essential competencies. Her criticism was, in essence, that the artificial scenario involved in role playing, could not involve the elements of reality fundamental to assessing skills such as communication with a patient / client and the realistic interpretation of their needs. She illustrated this by reference to two parts of the case study assessment marking form. The first addressed the performance criteria in the competence element described as “provide support within the context of maximum client participation”. Those performance criteria involve “confirming” procedures with the client, and the client’s preferences, providing the client with information in identifying their own care needs, and considering the client’s level of participation in meeting their care needs. The second part of the marking form to which Ms Mawer referred was the concluding entry that referred to the desirability of the assessment been based on information gathered over a period of time and covering a range of settings
Ms Mawer’s next point was that the additional workplace assessment component was inadequate for two reasons. First she contended that the workplace assessment strategy was ambiguous as to whether it required a response from a supervisor or the workplace client. Second, she contended that the workplace assessment criteria were too general to permit an informed assessment of competencies, particularly in relation to those where Ms Mawer regarded the case study assessment as inadequate.
Ms Mawer’s criticism of the limitations of the case study assessment is valid but, in my view inappropriately hypercritical. A case study, involving role playing, has its inherent limitations. It cannot accurately reflect the nuanced potential complications of effective and accurate communication in all of the situations that might conceivably occur in real life. But it remains the case that the use of case studies is inherently useful, and positively desirable as a means of facilitating the acquisition and assessment of basic competencies. This is particularly the case in relation to the development of the basic procedural competencies which, in my interpretation, underlie the performance criteria in the particular element that Ms Mawer used to illustrate her criticism. Furthermore, the AAMS assessment strategies involve both case study and workplace assessment. That necessarily implies recognition of the potential limitations of the case study assessment, and an appropriate strategy to address them.
I do not regard Ms Mawer’s criticism of AAMS case study marking guide, that it cannot address competencies gained over a range of settings, as a significant criticism. The requirement for assessment evidence being based on information that covers a range of settings is a recommendation, rather than a mandatory requirement, in the Evidence Guide in the relevant requirements of the unit of competency. Furthermore, I think it is proper to recognise that the case study assessment is but one element of the overall competency assessment, and is complemented by the workplace assessment. The AAMS’s instructions for workplace assessment specifically require that a trainee’s competency be assessed in the provision of a minimum number of services to a range of people. They also describe, according to my interpretation, the performance criteria to which Ms Mawer drew attention in the case study, as within the “essential skills” and “essential knowledge” that a trainee must demonstrate in the workplace.
Ms Mawer made two criticism of AAMS’ workplace assessment strategy in relation to this unit of competence. First, she was critical of the fact that AAMS did not have a “suitable strategy in place to directly assess students in the work place” and asserted that it totally relied on workplace assessment by untrained supervisors. Secondly, Ms Mawer regarded the workplace assessment strategies, as set out in AAM’s relevant assessment forms, as too general to provide a meaningful assessment.
I did not understand Ms Mawer to contend, and in any event I would not accept, that it was inappropriate to have a significant extent of performance assessment provided by workplace supervisors. Indeed, it is inherently desirable, and not at all inconsistent with the principles of assessment and the rules of evidence (see paragraph 51 above), to require evidence of workplace performance by means of assessment reports by workplace supervisors. The emphasis should be on the nature of the workplace evidence and the appropriateness of any ultimate assessment of competence by the RTO.
Ms Mawer highlighted the specific performance criteria detailed in the Training Package. She considered it unrealistic to expect that a workplace supervisor would be sufficiently familiar with those detailed requirements. This meant it was important for AAMS to communicate the substance of those requirements clearly, and to ensure that any reports by workplace supervisors were sufficient to provide a proper evidentiary basis for any ultimate assessment of competence. Against this background Ms Mawer was critical that AAMS’s “Workplace/Third-Party Trainer Instructions” did not clearly indicate to whom they were issued, and who was required to provide the information they sought. She was also critical of the fact that the information did not appear to indicate clearly what requirements were given to candidates in relation to the expectations of their performance.
In her revised annotated May 2013 report Ms Mawer criticised AAMS’s training and assessment materials in relation to this unit of competency. But the criticism of this material was the rather generalised statement that the reviewed tools did not "reflect unit requirements, rules of evidence, principles of assessment or the level and depth of complexity required at AQF level”. The significance of that non-compliance conclusion really depends, however, on a sound understanding of the real factual content of the individual deficiencies said to be involved.
There were two iterations of AAMS’s relevant assessment materials that were available at the hearing. The first of these, itself a revised version prepared in January 2013, identified both the required elements, and the performance criteria, in the Training Package unit of competency. It also identified specific assessment tasks, the kind of assessment to be applied to each performance criterion and an outline of the program for the delivery of the course .
The second iteration of this material was a “course module outline” that had been purchased from Futura training - a commercial training organisation. This version differed from the first iteration in two respects. The first was that it had a somewhat more detailed outline of the content of the theory sessions for the delivery of the course. The second was that it provided more detailed and specific scenarios for the particular assessment tasks.
When the totality of this material is analysed I am not satisfied there is a significant qualitative difference between the content of the commercially available assessment tools and the original material that was developed by AAMS. Furthermore, when one has regard to the actual content of the performance criteria set out in the Training Package unit of competency prescriptions they are, to my interpretation, expressed with a degree of generality that is not readily amenable to definitive conclusions as to how either the "rules of evidence" or the principles of assessment" must necessarily be applied in assessment of competency in relation to them. I can readily understand that minds may differ about the extent to which it is desirable to attempt to be exhaustively prescriptive in this area. But I doubt that it is an entirely useful exercise in relation to this particular unit of competency, given the generality of its performance criteria. It seems to me that it is one of those areas of competence, particularly having regard to the nature of this particular unit of competency within the overall Diploma qualification requirements, in which the adequacy of the training and assessment materials must depend upon the degree of confidence one places in the case study and practical assessment exercises, as well as in the competence of the staff delivering the training and conducting the assessments.
Ms Mawer thought it was potentially instructive to review the evidence of assessment typically provided by AAMS. She referred to an assessment record containing results recorded in December 2012 and January 2013 for a student in the Diploma of Disability. The first of these documents was apparently a kind of field placement report that had been completed by the student. Ms Mawer noted that in relation to a particular unit of competence the student has been marked off as "Not yet Competent". The notation by the assessor/ supervisor was that the student needed to identify more specifically her goals. Nevertheless, the student had subsequently been recorded as competent. Ms Mawer’s comment was that there was no evidence in the files to explain the process by which the ultimate finding of competence had come to be made. There was no evidence to substantiate the assessment in two respects. The particular tasks involved were not sufficiently specified and there was no clear reliable objective evidence of the nature or even the fact of the assessment.
However, it is is relevant to note three things about the "not yet competent" assessment involved in relation to this particular unit of competence. The first is that the workplace supervisor had recorded that student had obtained an appropriate level of competence. Second the AAMS’s assessment of "not yet competent" was based on the absence of substantiating evidence in the student’s field placement report and portfolio. Third, there was a two-month gap between the "not yet competent assessment" and the final recording of competence, by the same assessor, at the end of December 2012. When the totality of the available assessment material is reviewed it is, to my mind, reasonably clear that the AAMS assessor undertook an apparently thorough review of the students work placement report and the adequacy of the student's performance
It is no doubt valid to say that the totality of the evidence and reasoning process relied upon for that ultimate assessment was not demonstrably evident to the extent that it might have been. But this disappointment does not contribute meaningfully to a conclusion that it would be appropriate to cancel AAMS’s registration. Mr Stephens cautioned against drawing such an adverse inference from limited material. He noted that AAMS had a computerised recording system - VETrak - which was one of several commercially available packages documenting the recording of student progress. He said AAMS documented the procedure of assessment and that the individual records to which Ms Mawer referred did not reflect the totality of the assessment exercise. Mr Stephens again referred to the summary “Assessment record” document which he described as an overall "control gate" document that stood at the top of AAMS’s procedures for assessment. He characterised the result form document on which Ms Mawer had relied as merely a historical summary record that tracked the totality of the available progress records within AAMS’s recording system. Mr Stephens emphasised that neither that simple record of competence, nor the abbreviated form of workplace supervisor’s report could safely be regarded as the totality of the relevant assessment material.
Ms Mawer responded to Mr Stephens’ reliance on AAMS’s computerised record-keeping system by referring to another document that she suggested removed any basis for concluding that AAMS had any really meaningful records of relevant assessments. However, the document to which Ms Mawer referred was clearly a summary for a number of students, and not an individual record of a particular student. For that reason, it would be quite unsafe to conclude that there no relevant other primary assessment records. Little confidence can be placed in the conclusion that the lack of detail in the summary document, in any sense detracts from the thrust of the point of Mr Stephens made in his evidence. That point, it seemed to me was underscored by the appearance of significant scrutiny that in fact went into the assessment of this particular student’s competence.
Overview of SNR 15.5 compliance issues
ASQA rightly emphasised the essential importance of proper competence assessment. A training organisation does not qualify for registration unless it can justify satisfaction that it has strategies in place to ensure that assessments will be conducted appropriately and in accordance with the requirements of the relevant Training Package and the unit of competence. SNR 15.5, which requires an RTO to conduct its assessments “in accordance with the principles of assessment and the rules of evidence”, is one of the “essential standards for continuing registration. But beyond these basic principles the practical reality is that the question of compliance is not necessarily able to be determined in a conclusive way. This is because, at least in relation to some units of competence, the nature of the skills and knowledge involved will often involve impressionistic evaluations about which minds may differ. It is also because neither the “principles of assessment” nor the applicable “rules of evidence” are unambiguously rigid and prescriptive. Furthermore, even where non-compliance is either positively established or not definitely excluded, a decision about whether cancellation is “appropriate” permissibly involves more than just a consideration of the risk of non-compliance. It may involve a consideration of the nature of the non-compliance and a judgment about its materiality and extent.
In the present matter ASQA’s audit evidence identified a range of concerns about the quality of AAMS’s assessment practices and procedures. However, at least by the time of the Tribunal hearing, and for some months previously, AAMS had demonstrated a willingness to respond to ASQA’s criticisms, and a degree of appropriateness in the nature of its responses. When regard is had to the changes that AAMS has put in place (and which I have summarised in paragraph 30 above) as well as to its acceptance of some of the criticisms that Ms Mawer made about (what I have described as) infelicities in the expression and content of its currently revised assessment materials, I am satisfied, however that it does have in place training and assessment strategies that should ensure the required SNR compliance.
Conversely, although the extensive revision of AAMS course outlines and assessment materials might be interpreted as conveying some acknowledge of past shortcomings, I am not prepared to conclude that the way AAMS has in the past provided its training and assessment services has been materially non-compliant with the Training Package requirements. The factors that lead me to that conclusion are (i) the comparatively small number of units of competence where there was any specific criticism of AAMS’s assessment practices, (ii) the problematic and inconclusive nature of the few instances where specific inferences of inadequate assessment were sought to be drawn from the available material, (iii) the narrow scope of the “non-compliance” reports following the audit of February 2013, and (iv) the high level of student satisfaction – as reported in the 2013 Annual Report.
The SNR 16 - access and equity Issues
SNR 16 deals with the required aspects of an organisation’s performance in ensuring that it identifies and meets the needs of its clients. These required aspects include the provision of information to clients, analysis of relevant information and the implementation of an effective complaints and appeals system. The SNR 16 requirements (including the shaded provisions with which ASQA accepts AAMS complies) are set out below. The [bracketed] numerals in bold font indicate the comparative significance that ASQA attached to AAMS’s asserted non-compliance.
SNR 16- The NVR registered training organisation adheres to principles of access and equity and maximises outcome for its clients, as follows:
16.1The NVR registered training organisation establishes the needs of clients,
[10] and delivers services to meet these needs.
16.2The NVR registered training organisation continuously improves client services by collecting, analysing and acting on relevant data.
16.3Before clients enrol or enter into an agreement, the NVR registered training organisation informs them about the training, assessment and support services to be provided, and about their rights and obligations.
16.4Employers and other parties who contribute to each learner’s training and
[3] assessment are engaged in the development, delivery and monitoring of training and assessment.
16.5Learners receive training, assessment and support services that meet their
[8] individual needs.
16.6Learners have timely access to current and accurate records of their
[11] participation and progress.
16.7The NVR registered training organisation provides appropriate mechanisms and services for learners to have complaints and appeals addressed efficiently and effectively.
ASQA’s complaints about AAMS’s non-compliance with SNR 16.1 were insubstantial. I have already referred (in paragraphs 57 and 58 above) to one complaint related to timetabling and course structuring difficulties that could arise where students had already attained competency in units common to several AQF qualifications. Those kinds of difficulties do not provide a basis for a proposition that AAMS must be regarded as failing to deliver services where it does not tailor its course delivery to accommodate the prior learning qualifications of all its enrolled students. The proper interpretation of SNR 16.1 is to construe it as referring to the “needs” of the students in attaining the outstanding qualifications related to their enrolled course. In relation to that interpretation of student “needs”, the potential practical problems that individual students might confront because of their previous qualifications are not relevant to the question of compliance with SNR 16.1.
Another aspect of ASQA’s non-compliance complaint in relation to SNR 16.1 was that there was no evidence of disability and support services being provided to students. The evidence disclosed however that AAMS’s enrolment material sought information from students about their likely need for such services, and listed a range of available services. It also disclosed a number of interview appointments with person who was the Disability course co-ordinator and student counsellor. ASQA’s limited ground of complaint, understood against the information AAMS provided, did not establish a basis for a positive conclusion that AAMS did not comply with SNR 16.1.
Much the same kind of criticism (involving asserted lack of coherence in course delivery and lack of evidence of support services) was relied on by ASQA to establish AAMS’s non-compliance with SNR 16.5. That criticism was, in my opinion, too general to provide a basis for a positive conclusion that AAMS did not comply with SNR 16.5.
In relation to SNR 16.6 ASQA’s complaint, albeit one to which it attached a much lesser degree of significance, was that there were significant irregularities and inconsistencies noted in class rolls and student attendances. As a general principle it is no doubt of importance, and in particular circumstances it may be of considerable importance, that individual student’s attendance and progress records are complete and accurate. But it is naïve to expect perfection in relation to all such records, and unreasonable to regard some degree of inaccuracy or inconsistency as probative of systemic or material non-compliance. In my opinion the generality of ASQA’s complaints about AAMS’s attendance records was not shown to have been the cause of material disadvantage to any student and could not reasonably be regarded as materially contributing to a conclusion that the cancellation of its registration was appropriate.
That leaves for consideration ASQA’s criticism of AAMS’s non-compliance with SNR 16.4. One aspect of ASQA’s criticism was the observation that there was little evidence students gained workplace experience in “disability residential support”, an area which ASQA regarded as “a large part of the industry”. This proposition, even if true, does not, in the absence of specific evidence of student dissatisfaction, or difficulty in finding post qualification employment, justify a positive finding of non-compliance with SNR 16.4. There was no such evidence. Indeed the Annual Report (to which I referred in paragraphs 33 to 35 above) evidences a high degree of student satisfaction.
Much of ASQA’s basis for AAMS’s asserted non-compliance with SNR 16.4 involved complaints about the adequacy of the information AAMS conveyed to entities that accepted student Field Work Placements, the extent of the workplace supervisors’ informed involvement in the assessment of students, and the lack of adequate evidence of the nature and extent of the actual assessments and workplace supervision provided by both workplace supervisors and AAMS’s supervisor. These categories of complaint overlap factually with ASQA’s concerns about AAMS’s non-compliance with SNR 15.5. As I have indicated in the previous section of these reasons, the substance of those complaints involved concerns to the effect that work placement personnel were not:
(a)sufficiently informed about the required competencies and the work trainees should undertake to evidence them;
(b)required to evidence, in sufficient detail, the activities and performance of trainees; and,
(c)required to report, with sufficient precision, the nature of workplace assessments of competence.
I have already noted the format of the AAMS’s Field Placement Handbooks, and explained the changes made to them following the February 2013 audit. I have also detailed other aspects of AAMS procedures in relation to field placement - including the revised “Field Placement Memorandum of Understanding” and the altered marking guides and assessment record forms intended to be used with workplace assessment: see paragraphs 30(h) and 30(k) above. I have referred to the evidence Mr Coates gave about the procedures involved in introducing students to their field work placement: see paragraph 71 above. I have also taken into account the limited evidence of particular examples of workplace supervisor’s reports on the competence of individual trainees. It is reasonably clear from the attention that was given to these materials in the course of the hearing that previous versions of some of them were vulnerable to criticism that they lacked desirable specificity.
In relation to the revised materials there are some reasonable, though I think not significant, criticisms about possible lack of precision and infelicity of expression. I am not satisfied that either of these kinds of criticism provide an evidentiary basis for a separate conclusion that AAMS was, or is, non-compliant with SNR 16.4. The standard is expressed in terms of considerable generality. It is not prescriptive, in any meaningful way, about the actual extent of contribution and engagement that is required by “employers and other parties”. In circumstances where ASQA accepts AAMS’s current compliance with SNR 15.1 and SNR 16.2, where its complaints of non-compliance with SNR 16.1 and 16.5 are insubstantial, and where it is not in contest that AAMS makes extensive use of field placements as part of its competency training, I do not consider there is a basis for a positive finding of non-compliance with SNR 16.6.
The SNR 17 - management system Issues
SNR 17 relates to the quality of an organisation’s training and assessment services, the accuracy and integrity of its records, and its systematic commitment to continuous improvement. The terms of SNR 17 are set out below. The [bracketed] numerals in bold font indicate the comparative significance that ASQA attached to AAMS’s asserted non-compliance.
SNR 17 - Management systems are responsive to the needs of clients, staff and stakeholders, and the environment in which the NVR registered training organisation operates, as follows:
17.1The NVR registered training organisation’s management of its operations
[6] ensures clients receive the services detailed in their agreement with the NVR registered training organisation.
17.2 The NVR registered training organisation uses a systematic and continuous
[13] improvement approach to the management of operations.
17.3The NVR registered training organisation monitors training and/or
[12] assessment services provided on its behalf to ensure that it complies with all aspects of the VET Quality Framework.
17.4The NVR registered training organisation manages records to ensure their
[7] accuracy and integrity.
ASQA’s complaints about non-compliance with SNR 17.1, 17.2 and 17.4 were, in practical reality, no more than a re-categorisation of its other complaints. In relation to SNR 17.1 and 17.2, in particular, the factual matters involved were the same as those underlying the complaint of non-compliance with SNR 15.5. As to those matters, however, I note that in her non-compliance report of 27 May 2013 Ms Mawer recorded that significant improvements were evident at AAMS as a result of the appointment of Mr Coates as the new principal, and the appointment of a new compliance and administration officer. It is perhaps those improvements, and the favourable impression that Mr Coates had created, that led to ASQA’s acceptance of AAMS’s compliance with SNR 15.1 – and might have led to a similar acceptance of compliance with SNR 17.2, in the light of the significant improvements that had occurred.
ASQA’s implicit concession about the essentially common factual basis for its criticisms of non-compliance with SNR 15.5 and SNR 17.1 suggests that the latter does not call for separate consideration. However, I am not affirmatively satisfied that the factual matters that might be relied on to demonstrate some qualitative non-compliance with aspects of the Training Package assessment requirements establish non-compliance with SNR 17.1. SNR 15.5 essentially involves an enquiry about an RTO’s actual assessment process and procedures. SNR 17.1, on the other hand, is expressed to be directed at an RTO’s “management of its operations”, and is not explicitly directed at issues of qualitative compliance in relation to the services provided.
The complaint about non-compliance with SNR 17.3 involved the proposition that AAMS should monitor and supervise a unit of competency which was entirely delivered and assessed by another RTO. The basis of this proposition was a contention that because the students’ primary enrolment was with AAMS then the other RTO should, for the purposes of SNR 17.3, be regarded as having provided its training and assessment services “on behalf of” AAMS. This proposition is unsound. The other RTO is a completely independent organisation, solely responsible for training, assessment and the issue of the relevant certificates of attainment. There is no basis upon which SNR 17.3 could apply to such a situation.
The SNR 18 - governance Issues
The terms of SNR 18 are set out below. The shaded text indicates ASQA’s current acceptance of AAMS’s compliance. The [bracketed] numerals in bold font indicate the comparative significance that ASQA attached to AAMS’s asserted non-compliance.
SNR 18- The NVR registered training organisation has governance arrangements in place as follows:
18.1The NVR registered training organisation’s Chief Executive must ensure that the
[16]NVR registered training organisation complies with the VET Quality Framework. This applies to all of the operations within the NVR registered training organisation’s scope of registration, as listed on the National Register.
18.2The NVR registered training organisation must also explicitly demonstrate how it ensures the decision making of senior management is informed by the experiences of its trainers and assessors
ASQA contends AAMS does not comply with SNR 18.1 - for the same reasons that it was said not to comply with SNR 17.1 and 17.2 In the light of what I have said about SNR 17.1 and 17.2 in the preceding section of these reasons, and particularly the significant improvements that have occurred at AAMS, I am not satisfied that there is a proper evidentiary basis to make a finding of non-compliance in relation to SNR 18.1. In any event, I note that in its prioritised list of complaints ASQA identified this matter as the least significant.
The SNR 19 - regulatory co-operation Issues
ASQA contends that AAMS does not comply with SNR 19.1. That provision is as follows:
19.1The NVR registered training organisation must co-operate with the National VET Regulator:
(a) in the conduct of audits and the monitoring of its operations;
(b)by providing accurate and timely data relevant to measures of its performance;
(c) by providing information about significant changes to its operations;
(d) by providing information about significant changes to its ownership; and(e)in the retention, archiving, retrieval and transfer of records consistent with the National VET Regulator's requirements.
The basis of ASQA’s complaint of non-compliance was that AAMS has not provided evidence demonstrating it had fully rectified all of the areas of non-compliance about which ASQA had complained. This is a wholly subsidiary ground of complaint. It does not merit separate consideration, except to the extent of noting that it has no greater significance than ASQA’s similarly subsidiary complaints in relation to non-compliance with SNR 17.1, 17.2 and SNR 18.
The SNR 20 - legislative compliance Issues
ASQA contends that AAMS does not comply with SNR 20.1. That provision is in the following terms:
20.1The NVR registered training organisation must comply with relevant Commonwealth, State or Territory legislation and regulatory requirements relevant to its operations and its scope of registration.
ASQA’s complaint addressed two separate matters. The first was that AAMS had issued certificates of enrolment after the October 2012 NVR Act suspension decision, notwithstanding that the decision had not been stayed. The second matter was that AAMS had issued further certificates of enrolment after it had failed in its February 2013 application to obtain an order staying the suspension decision.
AAMS’s explanation for the first of these matters was the subject of a supplementary affidavit from Mr Coates, to which ASQA did not object. This affidavit disclosed that on 22 October 2012 AAMS was informed of ASQA’s consent to a stay of the cancellation decision, and that AAMS asked for an urgent hearing to obtain clarification of ASQA’s position. Mr Coates said that AAMS had no response to this request, and that the absence of response from the Tribunal was acknowledged (at a later hearing in February 2013) as an oversight. AAMS position was that, not having had a response to its request for a hearing in relation to the stay of the suspension decision, it assumed that its application had not been opposed and had been granted. That understanding may have a doubtful justification, but contemporary correspondence written by AAMS principal executive officer (not Mr Coates) on 5 November 2012 certainly does record an understanding that AAMS had “had the AAT overturn the decisions of ASQA”. The use of the plural “decisions” is at least consistent with an understanding that the course of events had involved the total removal of any impediment to AAMS continuing to accept enrolments. AAMS’s explanation for the second matter was that the only students involved were existing students who are moving from the Certificate III disability course into the Diploma course. AAMS did not regard these students as “new” students to which the suspension decision applied.
At the conclusion of the hearing, after I had required the parties to analyse and discuss the certificates of enrolment that had been issued after February 2013, ASQA accepted that the only students involved were students who had previously been enrolled by AAMS. Having regard to the AAMS’s past practices, in which it had undertaken delivery of some of the Certificate III units of competency either as part, of or in parallel with, the Diploma disability course, I can accept the reality of the rationalisation that appears to have been involved in the issue of certificates of enrolment after February 2013. In my view, that conduct does not relevantly inform the appropriateness of a decision to cancel or suspend AAMS’s registration.
There is less justification for taking the same view of AAMS’s conduct between October and February 2013. Indeed, in supplementary submissions ASQA emphasised that AAMS’s 22 October 2012 request to the Tribunal shows that it was aware of the distinction between the cancellation and suspension decisions. ASQA also says that the terms of the Tribunal’s 23 October 2012 stay order were clearly limited to the cancellation decision. What ASQA says about these things is accurate. But there has been some irregularity in not responding to AAMS’s 22 October 2012 request and the 5 November 2012 letter to which I have referred does convey the reality of AAMS subjective (though perhaps objectively not justified) belief that it was entitled to continue to accept enrolments in that period. In the light of that correspondence, and bearing in mind the substantial improvements that AAMS has implemented, I do not regard that conduct as meaningfully contributing to an assessment of the appropriateness of cancellation or suspension of AAMS’s registration
The SNR 24 - marketing Issues
ASQA contends that AAMS does not comply with SNR 24.1. The particular requirements of that provision are as follows:
24.1The NVR registered training organisation must ensure its marketing and advertising of AQF and VET qualifications to prospective clients is ethical, accurate and consistent with its scope of registration.
The basis of this complaint, as it was developed at the hearing, was a criticism of the contents of AAMS’s website as it appeared, up until about 24 June 2013. The practical substance of the complaint was that the website appeared to be inviting applications for enrolment at a time when AAMS was subject to the suspension decisions. However, Mr Coates gave evidence that, at least since February 2013, AAMS had not in fact accepted any anyone who was not a current student. All enquiries had been deflected, with some euphemistic explanation that did not disclose the factual complexities and uncertainties involved in the various ASQA decisions, and the review applications to the Tribunal.
In the light of Mr Coates’s explanation, and the very circumscribed evidentiary basis for the complaint, I regarded it as a matter of no material consequence in informing a decision about the appropriateness of cancellation or suspension of AAMS’s registration.
Decision
ASQA has established that some aspects of AAMS’s assessment strategies and practices, in relation to a small number of the units of competence in the courses within its scope of registration are not sufficiently detailed, and adequately documented, so as to justify satisfaction of AAMS’s compliance with all aspects of SNR 15.5. There are a number of other matters, of apparently minor current significance, in which AAMS may not have been compliant with the SNR requirements. (I refer here to paragraphs 53 and 110.) Typically, however, those matters have either been remedied, or AAMS has in place a program for their remediation. Furthermore, AAMS conduct since at least October 2012 has been characterised by a substantial, and apparently effective commitment to put in place improvements and strategies that are likely to result in substantial compliance with the SNR requirements.
ASQA submits nevertheless that cancellation is an appropriate sanction. The principal reasons for that submission are that: (i) AAMS has had ample time to have completed whatever remediation was required; and, (ii) AAMS’s substantial past history of non-compliance relevantly contributes towards satisfaction that cancellation is the appropriate sanction to impose in the present circumstances. Notwithstanding that submission, I do not consider that cancellation is the appropriate decision.
My analysis of ASQA’s current non-compliance complaints, consistent with the views expressed by both Ms Mawer and Mr Stephens, is that the question of principal significance is the extent of AAMS’s compliance with SNR 15.5. As to that matter, I am satisfied that AAMS is substantially compliant, and that such deficiencies as do exist can be timeously corrected by implementation of the strategy of improvement and refinement that has resulted in the developments I have described in paragraph 30 of these reasons.
Tardy compliance, adopted by an RTO only against the background of the impending finality of cancelled registration, may be an unsatisfactory basis to conclude that its registration may appropriately be continued. The reason is that tardy compliance, implemented only in response to the immediate urgings of self-preservation, may not engender confidence of ongoing commitment to compliance and improvement. But in the present matter AAMS has made significant and substantial improvements. Those developments include the engagement of new, experienced and capable, senior personnel. They have been responsible for “significant improvements evident at audit” in February 2013[31], and in later material AAMS has produced in response to “ASQA’s complaints.
[31] Ms Mawer’s 27 May 2013 non-compliance report at page 18.
Against this background, past non-compliance properly informs a decision about prospective cancellation or suspension only to the extent that the evidence goes beyond generalities and reveals matters of material significance. In the present matter the principal focus of the evidence was on AAMS’s current compliance, with little significant explanation or examination of the real extent of either the apprehended deficiencies in AAMS assessment practices, or actual deficiencies in the quality of its student outcomes. It was because of that comparative paucity of emphasis on, and elaboration of, the evidentiary basis for criticism of AAMS’s past non-compliance that I have taken into account: (i) the comparatively small number of units of competence in relation to which the evidence clearly identified non-compliance issues (see the Schedules to these reasons); (ii) the particular assessment criticisms that Ms Mawer articulated in her evidence about individual students; and, (iii) the apparently high level of student satisfaction with the course delivery by AAMS. The end result of my consideration of those matters, in the light of the other findings I have made is my consideration that it is not appropriate to cancel AAMS’s NVR Act registration. Consistent with the position ASQA articulated at the hearing, it follows that I would set aside all of the cancellation and suspension decisions under review.
At the end of the parties’ submissions at the hearing I informed them of the possibility that my decision would be to set aside the decisions under review. I contemplated that I might substitute for the decisions under review some other form of sanction, possibly including conditions. The kind of conditions I had in mind at the time were conditions that would require AAMS to pursue timeously its program for revising its various training and assessment strategies, to take into account the criticisms that had been made by Ms Mawer, and partly accepted by Mr Stephens. On reflection, however, I do not propose to take that course. ASQA has the power to impose any conditions it considers appropriate. It may exercise that power at any time.
In addition, ASQA has yet to decide AAMS’s renewal application. The contents of the information relevant to that impending decision were not addressed in the present proceedings, and it would not be appropriate for the Tribunal to speculate on the outcome of those applications. However, the reality is that when ASQA does decide those applications, AAMS’s current registrations will expire in any event.
In these circumstances I consider that the appropriate course to take is merely to set aside the decisions under review. Whether, following that decision, ASQA considers it appropriate to impose other conditions or sanctions on AAMS is a matter better left to be decided by ASQA in the discharge of its functions under the relevant legislation.
I certify that the preceding 138 (one hundred and thirty eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member P W Taylor SC. ......[sgd]..........................................................
Associate
Dated 30 July 2013
Dates of hearing 24, 25, 26, 27, 28 June and 5 July 2013 Date final submissions received 10 July 2013 Solicitors for the Applicant Michael Vassili Barristers & Solicitors Advocate for the Respondent Peter Cribb
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