Australian Centre for Advanced Studies Inc. and Australian Skills Quality Authority
[2021] AATA 1400
•20 May 2021
Australian Centre for Advanced Studies Inc. and Australian Skills Quality Authority [2021] AATA 1400 (20 May 2021)
Division:GENERAL DIVISION
File Numbers: 2019/5304
Re:Australian Centre for Advanced Studies Inc.
APPLICANT
AndAustralian Skills Quality Authority
RESPONDENT
DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:20 May 2021
Place:Perth
The Reviewable Decision of the Chief Commissioner of ASQA dated 15 August 2019 is set aside.
The matter is remitted to ASQA with a direction that the renewal of the Applicant’s registration should be granted because the Applicant complies with s 17(2) of the NVR Act.
.........................[Sgd]...............................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
VOCATIONAL EDUCATION AND TRAINING – registered training organisations – rejection of renewal of registration – whether non-compliance with Standards for Registered Training Organisations – whether failure to exercise meaningful control – most courses delivered through third party providers – whether Applicant had adequate oversight over the delivery of courses – Applicant found to be compliant with Standards – recommendations made to improve ASQA’s audit processes – decision under review set aside and remitted to ASQA
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 2A
National Vocational Education and Training Regulator Act 2011 (Cth) – ss 2A, 2A(e), 3, 16(1), 17, 17(1), 17(2), 17(2)(a), 17(2)(b), 17(3), 31(1), 31(3B)(a), 116(1), 155, 185(1), 199, 200(1), 203(1)
Standards for Registered Training Organisations (RTOs) 2015 (Cth) – standards 1.1, 1.2, 1.3, 1.7, 1.8, 1.10, 1.13, 1.14, 1.15, 1.16, 2.1, 2.4, 3.1, 5.1
Vocational Education and Training Act 1996 (WA) – s 27(1)
CASES
Access Training Institute Pty Ltd and Australian Skills Quality Authority; Kirana Training Pty Ltd and Australian Skills Quality Authority [2020] AATA 2470
Construction Industry Training Australia Pty Ltd and Australian Skills Quality Authority [2019] AATA 2219
Ielati and Secretary, Department of Social Services [2018] AATA 4276
Re Austwide Institute of Training Pty Ltd and Secretary, Department of Education and Training [2016] AATA 266
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
20 May 2021
BACKGROUND
By an application to this Tribunal dated 5 September 2019 (T1), the Applicant seeks review of a decision of the Chief Commissioner of the Respondent, the Australian Skills Quality Authority (ASQA), made on 15 August 2019 (T27) (the Reviewable Decision).
The Reviewable Decision rejected an application made by the Applicant on 20 June 2018 (T7) under s 17 of the National Vocational Education and Training Regulator Act2011 (Cth) (NVR Act) for renewal of its registration as a registered training organisation (RTO).
The renewal application was rejected because ASQA decided that the Applicant had abrogated its responsibility to properly oversee the delivery of the vocational education and training (VET) courses it was registered to provide. ASQA also decided that the Applicant failed to properly ensure these VET courses complied with the requirements of the NVR Act and the Standards for Registered Training Organisations (RTOs) 2015 (Cth) (the Standards). This was because the Applicant primarily delivered its courses through third-party providers (known as “auspicees”), giving rise to the argument that the Applicant did not have adequate oversight over the delivery of the courses.
However, at the hearing of this matter the Applicant argued that it had revised its compliance systems and audit strategy to ensure that it had appropriate oversight of its courses run by its auspicees. The Applicant submitted that it was currently compliant with all requirements of the NVR Act and the Standards (A1, paragraph [43]–[45]). The Applicant also took issue with the way the audit was conducted and the auditors’ interpretation of some of the relevant Standards (A1, paragraph [46]).
For the reasons set out below, the Tribunal has determined that the Applicant is compliant with the Standards and that its application for renewal of its registration as an RTO should be granted.
ISSUES
The issue for determination by this Tribunal is whether the Applicant’s application for registration as an RTO should be granted under s 17(1) of the NVR Act. In order to determine this issue, the Tribunal needs to consider whether the Applicant complies with the VET Quality Framework, as required by s 17(2)(a) of the NVR Act, specifically the Standards.
The Applicant’s concerns about the way the audit was conducted is not an issue for determination before this Tribunal. However, as will become evident from these reasons, some concerns do arise on the facts regarding ASQA’s interpretation of the Standards and audit processes. The Tribunal is permitted to make recommendations to enhance good government, to facilitate better decision-making and to improve government accountability and transparency (see discussion in Ielati and Secretary, Department of Social Services [2018] AATA 4276 at [40]–[42]). Therefore, the Tribunal has concluded these reasons with some observations about how ASQA could better improve its audit processes. Additionally, throughout these reasons the Tribunal has made observations with respect to ASQA’s interpretation of relevant Standards. As will be explained in the reasons below, ASQA’s interpretation of the Standards, which commendably appears to be informed by best educational practices, sometimes exceeds the requirements of the Standards themselves.
BACKGROUND TO THE APPLICANT AND ITS REGISTRATION
The Applicant is a “not for profit faith-based organisation”, with a seven-member management board, based in Coolbellup in Western Australia (T24/130–1).
The Applicant was first registered as a training organisation under s 27(1) of the Vocational Education and Training Act 1996 (WA) on 19 August 1999 and became registered under the NVR Act on 1 July 2011 (T26/179).
At the time the Reviewable Decision was made, the Applicant was registered to provide 16 courses (but actually provided 15) at certificate, diploma and graduate diploma level, and five accredited courses (courses developed by private entities that are registered with ASQA as satisfying the national accreditation requirements). These 21 courses were in the areas of theology, leadership and management, client assessment and case management, community services, hospitality, music and dance (T24/131; A1 [12]).
Also, at the time of the Reviewable Decision the staff in the Applicant’s central office consisted of one full-time principal and four part-time officers attending to student administration, administration, finance and the web page (T24/131; A1 [11]).
Most of the Applicant’s courses were delivered by auspicees, with whom the Applicant had agreements, although some teaching and assessment in the Graduate Diploma of Management (Learning), courses in Christian Ministry and Theology and a Certificate IV in community services was undertaken by a past principal and the acting principal of the Applicant (T24/131; A1 [13]).
As at February 2019, the Applicant had agreements with approximately 19 of these auspicees, although “two of [the organisations] had been suspended at the time and some had no students”. Most of the auspicees operated in Western Australia, however four of the 19 auspicees delivered courses in other Australian states. The majority of these auspicees were secondary schools or faith-based organisations (T24/131-132; A1 [14]).
However, by March 2020, the number of auspicees engaged by the Applicant had reduced to nine. Two were interstate with the remainder being in Western Australia (including two outside of the Perth metropolitan area) (A71/490–1; R4 [69]).
THE AUDIT
On 20 June 2018, the Applicant applied to renew its RTO registration (T7/40). The Applicant’s registration was due to expire on 14 October 2018 (T26/178).
On 17 December 2018, Ms Trestrail of ASQA emailed the then principal of the Applicant, Mr Randal Salmond, to provide notice that ASQA would be conducting a site audit to assess the Applicant’s ongoing compliance with the NVR Act and the Standards (T8/45).
In this email, ASQA sought pre-audit information being a summary of enrolments, student details and a list of auspicees and details of the services they provide (T8/45). The Applicant provided the requested information on 21 January 2019 (T10/50, ST1 and ST2) and provided further information on 25 February 2019 (T11/52) and on 5 March 2019 (T12/57; ST3 to ST52).
The Audit took place on 11 and 12 March 2019 (T17/92; T13 and T14). The auditors were Mr David Love (lead auditor) and Ms Amy Lennox (assistant auditor) (T17/93). The Audit included a brief site visit to two of the auspicees premises, which was estimated to be no longer than one and a half hours (T13/50). Ms Lennox attended Canning Vale College and Mr Love attended Ignite School of Ministry on the morning of 12 March before attending the Applicant’s office in Coolbellup (T13/58–9).
The auditors also conducted interviews with Mr Salmond, who was at that time the administration manager, and Dr Ross Woods, who was at that time the acting principal, as well as with nine representatives from the auspicees, including two from interstate (T17/95–6).
It was not until 8 April 2019 that an audit report was prepared, which detailed the auditors’ findings from the Audit. The audit report stated that it was completed by Mr Love. The “original finding at time of audit” was listed as “critical non-compliance” (T17/92) due to
alleged non-compliance with numerous Standards.The auditors did not audit all 20 courses provided by the Applicant, but rather audited four courses, being: Diploma of Leadership and Management; Certificate II in Hospitality; Certificate III in Christian Ministry and Theology; and a Certificate IV in Christian Ministry and Theology (T17/95).
ASQA did not send the Applicant a “notice of audit non-compliance and intention to make a decision” until 25 June 2019 (T18/118–19). In this notice ASQA provided the Applicant with a copy of the audit report and advised the Applicant that the Audit had assessed it as being critically non-compliant. The notice further advised the Applicant that ASQA intended to make a decision to reject the Applicant’s application for renewal of its RTO registration under s 17 of the NVR Act (T18/118–19).
The notice of 25 June 2019 also invited the Applicant to submit a written response and evidence to demonstrate that it had addressed the issues identified in the audit report (T18/118). On 24 and 26 July 2019, Dr Woods, as acting principal, provided a response and additional evidence (T21, T23 and ST88 to ST151).
On 12 August 2019 the 8 April 2019 audit report was updated by a different lead auditor, Ms Michaela Tarpley, following an analysis of the additional evidence provided by the Applicant (T24/129). Ms Lennox was still listed as an assistant auditor in the updated report.
On 13 August 2019, an “audit outcome decision record” (T27), to be provided to ASQA’s commissioners, was signed by Ms Tarpley, which recommended that the commissioners “reject, under NVR Act s 17, the application for renewal of registration as an RTO in full … with effect 35 calendar days after the date the RTO is given written notice of the decision” (T27/193).
The reasons for the recommendation commenced by stating (T27/194):
Following the review of evidence provided on 24th and 26th July 2019. [sic] The Australian Centre for Advanced [S]tudies was identified as remaining non-compliant with the Standards for Registered Training Organisations (RTOs) 2015 specifically clauses 1.1, 1.13, 1.14, 1.16, 1.2, 1.3, 1.7, 1.8, 2.4, 3.1, 4.1, 5.1, 5.2, 5.3 and 7.3.
On 15 August 2019, the Chief Commissioner accepted the recommendation and decided to reject the Applicant’s application for renewal of its registration as an RTO (T27/195). As noted above, this is the Reviewable Decision currently before the Tribunal.
In a letter dated 21 August 2019, the Applicant was notified of the decision to reject its application for renewal and that its registration as a training provider would expire on 25 September 2019 (T29).
On 26 August 2019 the Applicant sought review of the decision in this Tribunal (T1).
THE HEARING AND THE EVIDENCE
This application was heard on Tuesday 28 July 2020, Thursday 15 October 2020, Friday 16 October 2020 and Thursday 5 November 2020.
Acting principal Dr Woods appeared on behalf of the Applicant. Mr S Rebikoff of counsel appeared on behalf of ASQA, instructed by Ms P Singh from ASQA. Both Dr Woods and Mr Rebikoff appeared via videoconference for each day of the hearing.
By agreement of the parties, ASQA presented its case first, followed by the Applicant. ASQA called Ms Trestrail, manager of regulatory operations, regulatory operations division of Perth ASQA, to give evidence on the first day of hearing, and Ms Lennox, principal regulatory officer, regulatory operations division of Perth ASQA, to give evidence on the second day of hearing. The Applicant called Ms Kylie De Meo, a teacher at Canning Vale College, to give evidence on the second day of hearing. Dr Woods on behalf of the Applicant gave oral evidence and was cross examined on the second, third and fourth days of the hearing. All witnesses gave evidence via videoconference.
The Tribunal admitted the following documents into evidence at the hearing:
(a)Applicant’s Statement of Facts, Issues and Contentions (SFIC), revised 31 March 2020 (Exhibit A1);
(b)statutory declaration of Ms Kylie De Meo, dated 18 May 2020 with two attachments:
(i)a completed and signed “Assessment Tasks and Instructions” form for the unit “Provide responsible service of alcohol”, dated 21 August 2018; and
(ii)a blank, undated version of the same form for the same unit (Exhibit A2);
(c)statutory declaration of Dr Bethwyn Roberton, dated 15 May 2020 with attachment reproduced at A73 (Exhibit A3);
(d)Applicant's Materials, A1–A134, comprising 1489 pages (Exhibit A4);
(e)
amended SFIC of ASQA, dated 15 March 2020 and filed with the Tribunal on
15 May 2020 (Exhibit R1);
(f)Section 37 (Tribunal Documents), T1–T29, comprising 203 pages (Exhibit R2);
(g)Supplementary Tribunal documents, ST1-ST151, pages 204–2,021 (Exhibit R3);
(h)affidavit of Ms Amy Lennox, dated 14 May 2020, with attachments AL-1 to AL-2 (Exhibit R4);
(i)affidavit of Ms Stephanie Trestrail, dated 6 December 2019, with annexures ST1 and ST2 (Exhibit R5); and
(j)annotated unsigned version of affidavit of Ms Amy Lennox at Exhibit R4 (Exhibit R6).
LEGISLATION AND STANDARDS
Establishment and Objects
Section 155 of the NVR Act establishes a National Vocational Education and Training Regulator, being ASQA.
The Act also provides for a framework for the national regulation of vocational education and training.
Section 2A of the NVR Act sets out the objects of the NVR Act, which refers to this regulatory framework:
The objects of this Act are:
(a)to provide for national consistency in the regulation of vocational education and training (VET); and
(b)to regulate VET using:
(i) a standards-based quality framework; and
(ii) risk assessments, where appropriate; and
(c)to protect and enhance:
(i) quality, flexibility and innovation in VET; and
(ii) Australia's reputation for VET nationally and internationally; and
(d)to provide a regulatory framework that encourages and promotes a VET system that is appropriate to meet Australia's social and economic needs for a highly educated and skilled population; and
(e)to protect students undertaking, or proposing to undertake, Australian VET by ensuring the provision of quality VET; and
(f)to facilitate access to accurate information relating to the quality of VET.
Note 1:The standards-based quality framework mentioned in paragraph (b) consists of instruments made by the Ministerial Council, the Minister or the National VET Regulator.
Note 2:These objects are subject to the constitutional basis for this Act (see Division 3).
(Original emphasis.)
Registration
As noted above, this application concerns a renewal application made to ASQA by the Applicant to renew its registration as an RTO.
Section 16(1) of the NVR Act provides that:
A person may apply to the National VET Regulator for registration, including renewal of registration, as an NVR registered training organisation.
Section 3 of the NVR Act further provides that:
NVR registered training organisation means a training organisation that is registered by the National VET Regulator as a registered training organisation under this Act.
It is an offence for a person to provide a VET course without being registered as an RTO. More specifically, s 116(1) of the NVR Act provides that:
(1)A person commits an offence if:
(a)the person provides, or offers to provide, all or part of a VET course in a referring State or a Territory; and
(b)the person is not an NVR registered training organisation.
Penalty: 300 penalty units.
(Note omitted.)
The Reviewable Decision was made pursuant to s 17(1) of the NVR Act which provides that “The National VET Regulator may grant an application for registration”.
Sections 17(2) and 17(3) of the NVR Act further provide:
(2)In deciding whether to grant an application, the National VET Regulator must consider whether the applicant complies with:
(a)the VET Quality Framework; and
(b)the applicable conditions of registration set out in Subdivision B of this Division.
(3)When considering the application, the National VET Regulator may conduct an audit of any matter relating to the application.
Section 31(1) of the NVR Act generally provides that ASQA may renew the registration of an RTO if the RTO makes an application for renewal at least 90 days before its registration expires.
Section 31(3) of the NVR Act provides that if the RTO’s registration would expire before its application is decided, its registration will continue until the application is decided.
VET Quality Framework
The VET Quality Framework referred to in s 17(2)(a) of the NVR Act is defined in s 3 of the NVR Act as follows:
VET Quality Framework means the following:
(a)the Standards for NVR Registered Training Organisations;
(aa)the Quality Standards;
(b)the Australian Qualifications Framework;
(c)the Fit and Proper Person Requirements;
(d)the Financial Viability Risk Assessment Requirements;
(e)the Data Provision Requirements.
(Original emphasis.)
Standards
Section 185(1) of the NVR Act provides that: “[t]he Minister may, by legislative instrument, make standards for NVR registered training organisations, as agreed by the Ministerial Council”. These standards are the Standards for Registered Training Organisations (RTOs) 2015 (Cth), with the current version of the Standards being compilation number three, dated 1 July 2019.
There are eight Standards:
Standard 1.The RTO’s training and assessment strategies and practices are responsive to industry and learner needs and meet the requirements of training packages and VET accredited courses …
Standard 2. The operations of the RTO are quality assured …
Standard 3.The RTO issues, maintains and accepts AQF certification documentation in accordance with these Standards and provides access to learner records …
Standard 4.Accurate and accessible information about an RTO, its services and performance is available to inform prospective and current learners and clients …
Standard 5. Each learner is properly informed and protected …
Standard 6.Complaints and appeals are recorded, acknowledged and dealt with fairly, efficiently and effectively …
Standard 7.The RTO has effective governance and administration arrangements in place …
Standard 8.The RTO cooperates with the VET Regulator and is legally compliant at all times …
After each Standard is stated, there is a “context” statement which provides an overview of the requirements of each Standard. The Standard is then expanded upon with subparagraphs setting out what the RTO must do to be compliant with each standard.
Conditions of registration
Section 17(2)(b) of the NVR Act refers to the “applicable conditions of registration set out in Subdivision B of this Division”. Subdivision B of pt 2, div 1, “[c]onditions of registration”, commences with s 21, which provides:
An NVR registered training organisation must:
(a)comply with the conditions set out in sections 22 to 28; and
(b)comply with any conditions imposed on the organisation's registration under subsection 29(1).
(Note omitted.)
Section 22 makes compliance with the VET Quality Framework a condition and is relevant to this application. It provides in part:
(1)An NVR registered training organisation must comply with the Standards for NVR Registered Training Organisations.
(1A)An NVR registered training organisation must comply with the Quality Standards. …
Jurisdiction of the Tribunal
Section 199 of the NVR Act provides that certain decisions made by ASQA are reviewable decisions. Relevantly, item 1 of s 199 provides that “[a] decision to grant an application for registration (including renewal of registration) as an NVR registered training organisation” under s 17 of the NVR Act is a “[r]eviewable decision”.
An internal reconsideration of the decision is not available unless the decision was made by a delegate of ASQA (s 200(1) NVR Act).
Section 203(2) of the NVR Act confers jurisdiction on the Tribunal to review a decision of the Chief Commissioner:
Review of decision not made by delegate
(2)Applications may be made to the Administrative Appeals Tribunal for review of a reviewable decision if the decision was not made by a delegate of the National VET Regulator.
ALLEGED NON-COMPLIANCES WITH STANDARDS
The Tribunal’s approach in determining the Applicant’s alleged non-compliance with the Standards
This application was protracted and approximately 3,000 pages of material was filed with the Tribunal. It was difficult for the Tribunal to ascertain, even at the conclusion of the hearing, what the exact outstanding areas of non-compliance and the corresponding Standards that had been breached were. The parties appeared to be unwilling, or unable, to work with each other towards a resolution of the outstanding issues, or even to narrow down the issues in dispute. The Respondent’s inability to do so is particularly concerning given its role as a regulator.
Consequently, on 5 November 2020, the Tribunal directed ASQA to file written closing submissions “setting out the relevant standard, how [ASQA] says the Standard has not been complied with and cite relevant evidence in support” on or before 10 December 2020. In the 5 November 2020 direction, the Tribunal also directed for the Applicant to file an equivalent response on or before 14 January 2021, and for ASQA to file any reply on or before
4 February 2021.The Tribunal will now examine each alleged non-compliance identified in Annexure A of ASQA’s closing submissions filed on 8 December 2020 (Annexure A). Each alleged non-compliance will be examined against the corresponding submissions in reply from the Applicant filed on 14 January 2021, against ASQA’s reply submissions filed on 4 February 2021 and against the evidence relevant to each alleged non-compliance.
This is a similar approach to that of Senior Member Puplick in Access Training Institute Pty Ltd and Australian Skills Quality Authority; Kirana Training Pty Ltd and Australian Skills Quality Authority [2020] AATA 2470 at [63], which the Senior Member outlined was:
… to examine that evidence which relates to each of the alleged non-compliances and … refer to other evidence only to the extent of its relevance to those matters. Each clause will be examined separately taking into account ASQA’s evidence and that of the Applicants.
The Tribunal is of the opinion that this is the most efficient way to determine this matter, considering the Tribunal’s objectives in s 2A of the Administrative Appeals Tribunal Act 1975 (Cth) which provides:
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a)is accessible; and
(b)is fair, just, economical, informal and quick; and
(c)is proportionate to the importance and complexity of the matter; and
(d)promotes public trust and confidence in the decision-making of the Tribunal.
The Tribunal cautions, however, that even though it has attempted to focus the parties’ submissions on the outstanding areas of non-compliance following the hearing, the submissions were nevertheless extensive. The Applicant’s closing submissions, with annexures, totalled approximately 129 pages. Annexure A, which contains ASQA’s table of alleged non-compliances, alleges breaches of 13 separate standards with corresponding “dot points” (21 in total) detailing various failures by the Applicant to meet the Standards. The added difficulty for the Tribunal is that the alleged failures are subjectively and generally described. For example, ASQA has referenced that the Applicant “failed to exercise adequate oversight” without an explanation of how the Applicant needs to improve its current processes to demonstrate adequate oversight.
In order to determine the concerns of ASQA with any specificity, the Tribunal was made to have regard to the affidavit of Ms Lennox, where she describes why, in her opinion, the Applicant is non-compliant. However, again the Tribunal was faced with some difficulty because the alleged non-compliances in the affidavit were opinion-based and had an element of subjectivity. As described by Deputy President Boyle in Construction Industry Training Australia Pty Ltd and Australian Skills Quality Authority [2019] AATA 2219 at [69], “… whether documentation or practices comply or not is, in a lot of cases, a question of degree and opinion”. The opinions given by Ms Lennox appeared to be based on her view of best teaching and learning practises and on the auditor’s interpretation of the Standards. The auditor’s interpretation of the alleged non-compliances sometimes exceeded what would be required if the interpretation of the wording of the Standards was to be given its ordinary meaning. Consequently, the Tribunal has considered these submissions and any supporting evidence referred to by the parties and has endeavoured to discuss the main issues and concerns with respect to each Standard where non-compliance has been alleged.
Standards 1.1 and 1.2
First, ASQA alleges that the Applicant is non-compliant with Standard 1.1 and 1.2 which provide:
To be compliant with Standard 1 the RTO must meet the following:
1.1.The RTO’s training and assessment strategies and practices, including the amount of training they provide, are consistent with the requirements of training packages and VET accredited courses and enable each learner to meet the requirements for each unit of competency or module in which they are enrolled.
1.2.For the purposes of Clause 1.1, the RTO determines the amount of training they provide to each learner with regard to:
a)the existing skills, knowledge and the experience of the learner;
b)the mode of delivery; and
c)where a full qualification is not being delivered, the number of units and/or modules being delivered as a proportion of the full qualification.
The following particulars of how the Applicant was non-compliant with Standards 1.1 and 1.2 were given by ASQA in Annexure A:
ACAS has failed to exercise adequate oversight over the training and assessment strategies and practices of its auspicees insofar as it has:
· Failed to ensure that its Program Application Forms and Training and Assessment Strategy Forms collect enough information to enable it to make an assessment of compliance with clause 1.1 and 1.2;
· Failed to adopt or document a comprehensive system for checking that the information provided by auspicees in its Program Application forms and Training and Assessment Strategy forms complies with the requirements of clause 1.1 and 1.2; and
· Failed to ensure that the information provided by auspicees in its Program Application forms and Training and Assessment Strategy forms is checked, and that auspicees have compliant training and assessment strategies and practices in place, before training and assessment commences.
In support of ACAS’s non-compliance with Standards 1.1 and 1.2, ASQA referred to the affidavit of Ms Lennox at paragraphs [23]–[35] and excerpts of the evidence of Dr Woods from the hearing transcript (transcript/171–8; 185–94; 241–44). Ms Lennox’s affidavit explains that she reviewed several forms used by the Applicant to determine compliance with Standards 1.1, 1.2 and 1.3.
The “Program Application Form” (ST6/221–9) is a nine-page form which is to be completed by the auspicee and checked by the Applicant. It contains 57 questions and nine explanatory footnotes. The form commences with instructions about how it should be completed. It contains 10 parts, including parts relating to the qualification offered, students, marketing, the teaching schedule, instructor/ assessor details, resources and materials, industry consultation and delivery and assessment. Some parts that relate to specific Standards contain an explanation at the beginning of the part.
The Tribunal understands that after the Audit, the Program Application Form was revised and expanded upon to become the Training and Assessment Strategy (TAS) form (A79/522-532; transcript/241) which is again to be completed by the auspicee and checked by the Applicant. The TAS form is an 11-page form which commences with half a page of an explanation regarding the purpose of the form and instructions for the auspicee. It contains sections relating to details of the auspicee organisation, the qualification, the units being taught and instructor/assessor details, staffing, student recruitment, advertising and information, information for the web site, prerequisites, other program information, the teaching schedule, volume of learning, amount of training, intensive courses, industry consultation, delivery methods and strategy, student support and resources and materials, together with 35 explanatory footnotes. There are also detailed explanations under each section of the form about the requirements of the Standards and the Framework that are relevant to the information required in completing each section.
As is evident from the level of detail in these forms, the current application is not a case where an applicant has no systems, policies and procedures in place to ensure compliance with the Standards and the NVR Act. Indeed, it is the Tribunal’s view that the Applicant has produced very detailed forms to ensure compliance with the relevant Standards, with detailed explanations and specific references to the requirements of the Standards.
The Tribunal therefore rejects ASQA’s assertion that the forms fail to collect enough information to enable the Applicant to assess compliance with the Standards.
Ms Lennox stated at paragraph [28] of her affidavit that:
Having regard to the role of the auspicees in the delivery of training and assessment, I do not consider it to be inherently problematic that the auspicee is the one who prepares the training and assessment strategy, rather than the Applicant. However, as the Applicant is responsible for ensuring the training and assessment delivered by the auspicee complies with the Standards, it is critical that the information provided by the auspicee is thoroughly reviewed by the Applicant against the requirements of the Standards to ensure that all of those requirements are being met.
The overall concern from ASQA appears to be that the process of reviewing and assessing the adequacy of information collected within a completed TAS form has not been sufficiently documented (see affidavit of Ms Lennox at paragraph [29]). ASQA seeks “evidence” that a comprehensive review of the completed forms is undertaken (affidavit of Ms Lennox at paragraph [30]), sometimes with reference to what appears to be a subjective view of best teaching practices. For example, there is reference to “mapping” assessments in paragraph [34] of Ms Lennox’s affidavit, despite the Standards not referring to the concept of mapping. Notwithstanding Ms Lennox’s assertion that the Applicant has not undertaken any “mapping”, in his closing submissions, Dr Woods referred to a sample competency mapping document used by the Applicant (A43). This document requires that each program must pass an audit before it can be offered, which includes the checking of assessment materials as part of the audit process (A86). Dr Woods also referred to the “ACAS course procedure” document which requires consideration of whether an additional annual audit is required (A77).
Additionally, the Applicant submitted that the “ACAS course procedure” document at (A77/519) sets out a procedure for checking the TAS form. The Applicant also drew the Tribunal’s attention to the “Revised ACAS Audit approach” (the Audit Approach) procedure, which provides instructions for checking the TAS form, as well as providing for an annual audit for each qualification. The relevant Standards are also cited at the end of the section of the Audit Approach (A86/545).
Also, in the Applicant’s closing submissions Dr Woods referred the Tribunal to three of the Applicant’s internal compliance questions at the end of the TAS form (A79/532). The Tribunal also accepts Dr Woods evidence that in the past he has rejected 35% to 50% of submitted TAS forms and that he has required that the auspicees submitting the form make corrections and resubmit (page 18 of Applicant’s closing submissions) to ensure compliance with the Standards.
On the balance of probabilities, the Tribunal is satisfied that, whilst the Applicant could have kept more accurate records or examples of these rejections and resubmissions of TAS forms, the Applicant does have a comprehensive system in place for checking the information provided by auspicees. This is reflected by the required forms themselves, which are comprehensive and require substantial detail. The forms are also guided by references to and detailed explanations from the Standards.
The Tribunal observes that these forms appear to have been audited by ASQA with a fine eye in order to find fault with them. For example, Ms Lennox expressed concerns, in paragraph [29] of her affidavit, about “the open ended nature of many of the questions in the Applicant’s Training and Assessment Strategy form”. Ms Lennox noted that it may be possible for an auspicee to complete the form in a manner which satisfactorily addresses the requirements of the Standards, or that it may be possible to complete the form in a manner that does not adequately explain the approach to be adopted for the delivery of training and assessment. She concludes this paragraph in her affidavit by stating that the process of reviewing the form is critical to ensuring compliance with the Standards. Thus, Ms Lennox is expressing the opinion that further documentation is required to show how each completed form was reviewed and assessed.
The Tribunal’s own review of the questions contained within the TAS form is that they are numerous, comprehensive and supported by explanatory notes and statements to assist the auspicee completing the form, which in turn ensures a more detailed assessment of TAS form compliance. Many of the questions require detailed, open-ended, explanations (with reference, for example, to “how and why” and “please explain your reasons” at A79/528) and have corresponding references to the relevant Standards (“Standard 1.2” and “consider students’ existing skills, knowledge and experience”) and footnotes to instruct the auspicee what to consider in order to comply with the Standards (for example, footnote 25 at A79/528 provides that “[y]ou may provide less time only if you can demonstrate that your reduced amount will be adequate, e.g. students have prior qualifications that cover some of this course content, or prior experience working in the industry”). Open-ended and descriptive questions require a higher level of engagement from the auspicee completing the form and require more comprehensive answers which would in turn enable a more detailed assessment regarding compliance to be made (as opposed to a checklist or box ticking exercise).
It appears to the Tribunal that ASQA is suggesting that an additional layer of administrative action is required, whereby every deliberative process of the Applicant in checking every form completed by every auspicee is recorded. That would certainly be useful for the auditor if the audit is to be primarily document based (which was the case with this audit – note that the Tribunal has made a recommendation in this regard below). However, the forms themselves, which the Tribunal accepts are checked by the Applicant to ensure compliance with the Standards, necessarily dictate that a detailed checking process takes place.
Consequently, the Tribunal rejects ASQA’s submissions set out at paragraph [62] above and finds that the Applicant is compliant with Standards 1.1 and 1.2.
Standard 1.3
The second non-compliance alleged by ASQA is that the Applicant has breached Standard 1.3 which provides:
To be compliant with Standard 1 the RTO must meet the following: …
1.3.The RTO has, for all of its scope of registration, and consistent with its training and assessment strategies, sufficient:
a)trainers and assessors to deliver the training and assessment;
b)educational and support services to meet the needs of the learner cohort/s undertaking the training and assessment;
c)learning resources to enable learners to meet the requirements for each unit of competency, and which are accessible to the learner regardless of location or mode of delivery; and
d)facilities, whether physical or virtual, and equipment to accommodate and support the number of learners undertaking the training and assessment.
ASQA particularised this alleged non-compliance in Annexure A as follows:
ACAS has failed to exercise adequate oversight over the sufficiency of the trainers and assessors, facilities and resources of its auspicees insofar as it has:
· Failed to adopt or document a comprehensive system for checking that the information provided by auspicees in its Program Application forms and Training and Assessment Strategy Forms complies with the requirements of clause 1.3; and
· Failed to ensure that the information provided by auspicees in its Program Application forms and Training and Assessment Strategy forms is checked, and that auspicees have sufficient trainers and assessors, facilities and resources in place, before training and assessment commences.
ASQA referred to paragraphs [36]–[39] of Ms Lennox’s affidavit and Dr Woods’ evidence under cross examination at pages 179–85 and 201–3 of the hearing transcript.
The relevant paragraphs in Ms Lennox’s affidavit again express concerns regarding the TAS form failing to collect sufficient details about the number of student enrolments, the availability of trainers, teaching resources, the size or capacity of the facilities from which training will be provided and the amount and kind of equipment available to students. Concerns were also expressed about the existence of a policy or process for checking equipment. Ms Lennox in her affidavit also criticised that the Applicant has only provided one example of an equipment checklist being completed (ST130.1/1596).
Whilst further details could be given about these matters in the TAS form, the TAS form, however, asks auspicees to specify the instructors/assessors who will be teaching the unit (A79/523), has a section on resources and materials (Standard 1.3; A79/530), asks about the physical location where the course will be taught and asks whether there is a work placement (A79/526). Dr Woods stated that for ongoing programs, current numbers of student enrolments have always been a reliable guide as to enrolment numbers, and for new programs, estimates have always exceeded actual enrolments (page 23, Applicant’s closing submissions). The sections identified by Ms Lennox in paragraphs [36]–[39] of her affidavit could easily be expanded upon by the Applicant to address ASQA’s concerns, but in the Tribunal’s view this does not demonstrate that the Applicant is not complying with Standard 1.3.
With respect to the concern about equipment, as noted by Dr Woods in closing submissions, the Applicant’s Audit Approach “covers all these requirements” (page 23, Applicant’s closing submissions). The Audit Approach contains a section called “equipment list”, which is necessary to “show that the site has all equipment prescribed as necessary for all units offered” (A86/546). The Audit Approach also states that a checklist is to be prepared for units that specify equipment is needed and for a site inspection to be undertaken to determine what equipment is present and what is missing. Ms Lennox expressed concern that she would like to see more detail about “the number or kind of resources available” because the sample checklist lists items generally, for example, “office equipment” and “glassware”. This is in fact an oversimplification. The Tribunal has reviewed the sample checklist at ST130.1/1596–8, which contains detailed equipment lists for various courses. There are detailed equipment lists for hospitality courses. For example, the course “[h]ygiene for food safety” lists numerous individual items of equipment under different categories including “fixtures”, “small equipment” and “appropriate facilities for handwashing”. To provide an example of the level of detail, the items listed under “small equipment” for this course are:
Assorted pots and pans
Containers for hot and cold storage
Crockery
Cutlery
Cutting boards
Food handler gloves
Glassware
Knives
Packaging materials
Receptacles for presentation and display purposes
Small utensils: tongs and serving utensils
For courses where it would not be expected that detailed items such as utensils would be required, there are more general descriptions, which could perhaps be expanded upon, but again, this is not indicative that Standard 1.3 has not been met (see courses, for example, “working with others” and “communicate in the workplace” which generally describe “office equipment” and “business resources” (ST130.1/1596)).
As stated above at paragraph [72], the Tribunal re-iterates its concerns that the Audit has been undertaken with a fine eye to find fault with the Applicant’s documentation. Again, with reference to Standard 1.3, ASQA’s contentions focus on the forms used by the Applicant not being compliant, however the Tribunal is satisfied that the Applicant has sufficient checks and processes in place to ensure compliance, as is demonstrated by the detail in the TAS form, the audit procedures and requirements, such as the Audit Approach, and the equipment checklist provided by the Applicant as an example, even though the Standards do not require the keeping of equipment lists.
With respect to Standard 1.3, the Tribunal rejects ASQA’s submissions set out at paragraph [77] above and finds that the Applicant is compliant with Standard 1.3.
Standard 1.7
ASQA also alleged that the Applicant is non-compliant with Standard 1.7 “[l]earner support”, which requires that:
1.7.The RTO determines the support needs of individual learners and provides access to the educational and support services necessary for the individual learner to meet the requirements of the training product as specified in training packages or VET accredited courses.
ASQA gave the following particulars of this alleged non-compliance in Annexure A:
ACAS has failed to exercise adequate oversight over the support provided to students by its auspicees insofar as it has:
· Failed to conduct or document an adequate review of the support provided by auspicees to students as part of its audit process; and
· Failed to ensure that the support provided by auspicees to students is reviewed, and that adequate support is provided to students, on a regular and systematic basis following enrolment.
ASQA has not referred to any evidence in support of its submission that this Standard has been breached, aside from paragraph [75] of Ms Lennox’s affidavit:
Student Support – Similarly, the obligation to ensure that student support is provided appears to be devolved entirely to the auspicee. While the Applicant’s Training and Assessment Strategy form (A79, p522) and Admissions Policy (A51, p372) refer to the provision of student support, the obligation to provide such support under clause 1.7 of the Standards is one that continues throughout the duration of the student’s enrolment. However, it appears there is no mechanism in place for the Applicant to exercise oversight over this requirement.
(Emphasis added.)
Thus, the concern appears to be that although the TAS form and the Applicant’s Admissions Policy and Procedures (the Admissions Policy) refer to student support, the student support is provided by the auspicee with insufficient oversight by the Applicant.
Going back a step, the Tribunal observes that the Admissions Policy in the Applicant’s Handbook for Students and Prospective Students (A51/376; A50) provides for the support needs of prospective students to be considered when they are being assessed for admission by auspicees, including whether a prospective student requires any additional support to meet the requirements of the course because they have a disability, study skills or emotional needs. Also, in a section titled “special needs” the Handbook asks prospective students to advise the person conducting admissions of any special needs to assess the student’s situation and whether adjustments can be made to enable the student to successfully complete the training in a manner that does not compromise the requirements of the course, and amongst other things, the integrity of the assessment (A50/344).
Additionally, the TAS form contains a section on “Student Support” which has two open ended questions for the auspicee to complete (A79/530). The first question is, “[h]ow will you determine the amount of support that students require?”. There is a corresponding explanatory footnote to this question which states, “E.g. Pretest of skills before admission, monitoring written work, classroom observation, review of previous work. If an applicant will require extra support that you cannot provide and cannot outsource, you must reject the application”. The second question is, “[w]hat kind of support strategies do you have in place for students who need extra help? E.g. Tutoring, classroom assistants, etc”.
The Applicant has also referred the Tribunal to a policy document for “Instructors and Assessors” (A52/381–3). This policy states that part of the role description of an instructor and an assessor includes to:
Identify student needs for additional support of whatever kind (e.g. language, literacy, numeracy, study skills, disability) during the provision of instruction and assessment.
Provide basic support as relevant:
a. If the whole group, integrate it into regular instruction
b. If individuals, provide extra coaching
c. If disability, provide an environment that accommodates disability and/or make allowable adjustments in assessment
If the support need is outside the ability of the instructor/assessor, refer the student to internal support specialists (e.g. school educational support personnel).
If the support need is outside the capacity of the site, refer the student to external support providers, and inform them of any fees.
(Footnotes and paragraph numbering omitted.)
After reviewing this policy documentation, the Tribunal finds that the Applicant has documented and put in place adequate procedures concerning student support and has had adequate oversight of student support. The Tribunal’s opinion is that the instructors and assessors are best placed to make the initial determination as to whether a student needs support and the nature of the support required at first instance, which will vary depending on the individual circumstances and needs of the student and the nature of the course that they are studying. The Applicant’s policies then set out the expectations of auspicees in providing the necessary support to the student, or alternatively the expectation of referring the student to school or external support personnel. As part of the Applicant’s Audit Approach, the TAS is reviewed annually (A86/545), which means that every year the questions concerning student support identified in paragraph [86] above will be reviewed with the auspicee to ensure that the Applicant is satisfied of compliance.
The Tribunal finds that the Applicant is compliant with Standard 1.7.
Standard 1.8 and 3.1
There was some overlap in ASQA’s submissions, and the evidence referred to by ASQA, regarding alleged non-compliance by the Applicant with the Standards concerning assessment tools and judgements. Consequently, these Standards will be dealt with together.
Standard 1.8, “[a]ssessment”, requires that:
1.8.The RTO implements an assessment system that ensures that assessment (including recognition of prior learning):
a)complies with the assessment requirements of the relevant training package or VET accredited course; and
b)is conducted in accordance with the Principles of Assessment contained in Table 1.8-1 and the Rules of Evidence contained in Table 1.8-2.
Table 1.8-1, “Principles of Assessment”, provides:
Fairness
The individual learner’s needs are considered in the assessment process.
Where appropriate, reasonable adjustments are applied by the RTO to take into account the individual learner’s needs.
The RTO informs the learner about the assessment process, and provides the learner with the opportunity to challenge the result of the assessment and be reassessed if necessary.
Flexibility
Assessment is flexible to the individual learner by:
· reflecting the learner’s needs;
· assessing competencies held by the learner no matter how or where they have been acquired; and
· drawing from a range of assessment methods and using those that are appropriate to the context, the unit of competency and associated assessment requirements, and the individual.
Validity
Any assessment decision of the RTO is justified, based on the evidence of performance of the individual learner.
Validity requires:
· assessment against the unit/s of competency and the associated assessment requirements covers the broad range of skills and knowledge that are essential to competent performance;
· assessment of knowledge and skills is integrated with their practical application;
· assessment to be based on evidence that demonstrates that a learner could demonstrate these skills and knowledge in other similar situations; and
· judgement of competence is based on evidence of learner performance that is aligned to the unit/s of competency and associated assessment requirements.
Reliability
Evidence presented for assessment is consistently interpreted and assessment results are comparable irrespective of the assessor conducting the assessment.
Table 1.8-2, “Rules of Evidence”, provides:
Validity
The assessor is assured that the learner has the skills, knowledge and attributes as described in the module or unit of competency and associated assessment requirements.
Sufficiency
The assessor is assured that the quality, quantity and relevance of the assessment evidence enables a judgement to be made of a learner’s competency.
Authenticity
The assessor is assured that the evidence presented for assessment is the learner’s own work.
Currency
The assessor is assured that the assessment evidence demonstrates current competency. This requires the assessment evidence to be from the present or the very recent past.
ASQA gave the following particulars of this alleged non-compliance with Standard 1.8 in Annexure A:
ACAS has failed to exercise adequate oversight over the training and assessment delivered to students by its auspicees insofar as it has:
· Failed to conduct or document an adequate review of the assessment tools utilised by its auspicees, including by conducting reviews in a perfunctory and superficial manner, failing to differentiate between tools utilised in different units of competency, and marking tools as compliant notwithstanding findings that they are inadequate or have not been provided;
· Failed to conduct or document an adequate review of the assessment judgments made by its auspicees, including by conducting reviews in a perfunctory and superficial manner, failing to differentiate between judgments made by different assessors for different pieces of assessment undertaken in different units by different students, and marking judgments as compliant simply because the corresponding tools have been assessed as compliant;
· Failed to ensure that the assessment tools utilised by its auspicees are reviewed, and that auspicees have assessment tools in place that meet the requirements of the training package or accredited course and comply with the Principles of Assessment and Rules of Evidence, before training and assessment commences; and
· Failed to ensure that the assessment judgments made by its auspicees are reviewed, and that auspicees are undertaking assessment that complies with the Principles of Assessment and Rules of Evidence, before students are assessed as having met the requirements of the course and issued with a qualification.
Similarly, Standard 3.1 provides that:
To be compliant with Standard 3 the RTO must meet the following:
3.1.The RTO issues AQF certification documentation only to a learner whom it has assessed as meeting the requirements of the training product as specified in the relevant training package or VET accredited course.
ASQA provided the following particulars in Annexure A of how it alleged that the Applicant was non-compliant with Standard 3.1:
ACAS has failed to issue qualifications only to students who it has assessed as meeting the requirements of the course in which they are enrolled, insofar as it has:
· Failed to conduct or document an adequate review of the assessment judgments made by its auspicees, including by conducting reviews in a perfunctory and superficial manner, failing to differentiate between judgments made by different assessors for different pieces of assessment undertaken in different units by different students, and marking judgments as compliant simply because the corresponding tools have been assessed as compliant; and
· Failed to ensure that the assessment judgments made by its auspicees are reviewed, and that auspicees are undertaking assessment that complies with the Principles of Assessment and Rules of Evidence, before students are assessed as having met the requirements of the course and issued with a qualification.
In support of the submissions concerning an alleged breach of both Standards 1.8 and 3.1, ASQA referred to the affidavit of Ms Lennox at paragraphs [52]–[62]. Some of the concerns raised by Ms Lennox included that the Applicant’s only means of ensuring compliance with Standard 1.8, regarding assessment systems, was through a process of “validating” the auspicee’s assessment tools and judgments and that the process of validation undertaken by the Applicant was “carried out at an extremely superficial level”. Ms Lennox noted that validation “is usually an extensive and detailed process”, which is why Standard 1.10 generally provides that it will occur every five years. Concerns were also expressed by Ms Lennox regarding the forms used by the Applicant, being an “assessment judgment form” and an “assessment tools form”. She also expressed concerns with the “Assessment Validation Report Form”, which, to summarise, was alleged not to contain sufficient detail or “explanation of the reasoning that led to a particular finding of compliance”.
Under the Applicant’s Audit Approach (A86/546, item 8), assessment materials are checked for all units of every qualification to be offered and must pass an audit before commencement of the qualification. Further, the Audit Approach provides, in some detail, for assessment tools and assessment judgements to be validated each year (A86/546, item 10). There is a revised assessment validation report used as part of this process, which is detailed and comprises 11 pages (Annexure 7 to Applicant’s closing submissions). This report also requires an evaluation of the principles of assessment and the rules of evidence that is consistent with Tables 1.8-1 and 1.8-2. It also requires consideration of assessment processes, including whether assessors interpreted evidence consistently and whether their results are comparable. The Applicant notes that this report has been revised twice since Ms Lennox signed her affidavit (Applicant’s closing submissions, page 35, paragraph [2]), however, these revisions do not seem to have been considered by ASQA. The Tribunal further notes the specific examples of the Applicant’s validation in the materials before the Tribunal (for example, ST132.1-132.2, pages 1599–669 and A25-A37, pages 112–93), with the page ranges indicating the volume of the validations undertaken by the Applicant. Further, the Tribunal has had regard to the example given by the Applicant in its closing submissions, being that validation in the Certificate II in Hospitality not being difficult as a result of the practical nature of the course, with students being assessed as simply competent or not competent (Applicant’s closing submissions, pages 41–2, paragraph [4]). The Applicant also referred to a sample Competency Mapping – Assessment Tools Form which states that its purpose is to align the assessment tools with the units of competency (A43/246).
Standard 1.8 is another example of a Standard where the parties have differing views concerning its interpretation. The Applicant correctly observes that the Standards do not specify what is to be included in the written record of an assessment validation (Applicant’s closing submissions, page 35, paragraph [1]). Indeed, Standard 1.8 does not refer to a process of validation, although it refers to items that may be checked during a process of validation. The “context” section contained within Standard 1 states that “… RTOs must implement a comprehensive plan of systemic validation”. The principles of assessment and rules of evidence contained within tables 1.8-1 and 1.8-2 (see paragraphs [96]–[97] above) both refer to “validity”. “Validation” is defined in the “glossary” to the Standards as follows:
Validation is the quality review of the assessment process. Validation involves checking that the assessment tool/s produce/s valid, reliable, sufficient, current and authentic evidence to enable reasonable judgements to be made as to whether the requirements of the training package or VET accredited courses are met. It includes reviewing a statistically valid sample of the assessments and making recommendations for future improvements to the assessment tool, process and/or outcomes and acting upon such recommendations.
(Emphasis added.)
A consideration of this definition shows that the process of validating assessment tools enables reasonable judgments to be made as to whether the course requirements have been met by graduating students. It includes checks such as reviewing a statistically valid sample of assessments. As has been discussed above, the Applicant has comprehensive processes and procedures in place for validating assessment tools and thus for ensuring that the assessments accurately certify that students meet the requirements of the training product before graduation. As this process is ongoing, there does not need to be a separate process of assessment validation that takes place before a student is able to graduate for Standard 3.1 to be complied with.
Ms Lennox also suggested in support of her assertion of the superficial nature of the Applicant’s validation process, in paragraph [58] of her affidavit, that if there were 12 units in the “Certificate II in Hospitality” course, and if there were 10 students who had each completed two assessments for each of the 12 units, that 120 pieces of individual assessment would need to be reviewed. However, this assertion does not accord with the above definition of validation in the Standards at paragraph [103], which requires a review of a “statistically valid sample”.
From its review of the materials, policies and evidence of the Applicant’s assessment audits and validations, the Tribunal is of the opinion that the Applicant does have an assessment system in place that is compliant with the requirements of Standards 1.8 and 3.1.
Standard 1.13, 1.14, 1.15, 1.16
ASQA alleges that the Applicant is non-compliant with Standards 1.13 to 1.16 which concern “[t]rainers and assessors”. These Standards require that:
1.13.In addition to the requirements specified in Clause 1.14 and Clause1.15, the RTO’s training and assessment is delivered only by persons who have:
a)vocational competencies at least to the level being delivered and assessed;
b)current industry skills directly relevant to the training and assessment being provided; and
c)current knowledge and skills in vocational training and learning that informs their training and assessment.
Industry experts may also be involved in the assessment judgement, working alongside the trainer and/or assessor to conduct the assessment.
1.14.The RTO’s training and assessment is delivered only by persons who have the training and assessment credential specified in Item 2 or Item 3 of Schedule 1.
1.15.Where a person conducts assessments only, the RTO ensures that the person has the training and assessment credential specified in Item 2, or Item 3, or Item 5 of Schedule 1.
1.16.The RTO ensures that all trainers and assessors undertake professional development in the fields of the knowledge and practice of vocational training, learning and assessment including competency based training and assessment.
In its written closing submissions, ASQA provided the following particulars of how it alleged that the Applicant was non-compliant with these Standards:
ACAS has failed to exercise adequate oversight over the qualifications and experience of the trainers and assessors employed by its auspicees insofar as it has:
· Failed to ensure that its Approval to Deliver forms collect enough information to enable it to make an assessment of compliance with clause 1.13 to 1.16; and
· Failed to adopt or document a comprehensive system for checking that the information provided by trainers and assessors in its Approval to Deliver forms complies with the requirements of clause 1.13 to 1.16.
ASQA relied upon the affidavit of Ms Lennox at paragraphs [41]–[51]. In her affidavit,
Ms Lennox expressed concern about the Applicant’s “Approval to Deliver Form” (A80/533). This is a form which is self-described as recording the qualifications, professional development and relevant experience of instructors and assessors to ensure they meet the requirements of the standards. The primary concern of Ms Lennox appeared to be that there is a lack of evidence as to how the form is checked and that it is unclear whether the Applicant routinely verified the information in the form. Ms Lennox also stated concerns that during the initial site audit, the Applicant was unable to provide copies of the qualifications for all staff involved in training and assessment when requested to do so and had to obtain copies from the relevant auspicees. Her concern was that this indicated that the Approval to Deliver Form was not always checked or enforced by the Applicant.
In its closing submissions, the Applicant submitted that it does have an appropriate process in place to ensure that instructors and assessors are qualified to the level required in the Standards. The Applicant referred to its Audit Approach, which states that during the audit “[e]ach instructor needs to provide a current Approval to deliver form, and copies of all relevant credentials” and that the forms need to be checked and updated so that they are “up to the minute on the current form”. It further provides that qualifications must be checked, including by obtaining and verifying paper copies of qualifications (A86/546). The Applicant also referred to the section at the end of the Approval to Deliver Form, titled “checked and approved”, where an officer of the Applicant must certify that they have “approved this form and accompanying documentation as satisfying relevant requirements” (Applicant’s closing submissions, page 27, paragraph [4]; A80/536). The Applicant also referred to a checking procedure in a document titled “ACAS course procedure”, which contains the following checking procedure (A77):
1.All trainers/assessors must fill in/update the staff form (Approval to deliver) and provide copies of required credentials, unless recently done in an audit. E.g.
a.CV
b.Testamurs/transcripts of qualifications
c.Evidence of 1) current industry skills and 2) training and assessment skills kept up to date
2.ACAS checks staff information.
a.If it is correct, go to next step.
b.If possible/necessary, verify qualifications/credentials.
The Applicant disagreed with the statement in Ms Lennox’s affidavit that during the Audit in March 2019, the Applicant was unable to provide copies of the qualifications for all staff involved in training and assessment when requested to do so and that the Applicant had to obtain copies from the relevant auspicees. Indeed, the evidence of Dr Woods was that soft copies of the forms were available on a database and ASQA were informed that soft copies were available, but “he” (which the Tribunal infers means the male auditor, Mr Love) became annoyed and did not want to view these copies (transcript/211–13). Given that it was not clear from the wording of Ms Lennox’s affidavit whether she was present when the Applicant was unable to provide hard copies of the qualifications, and accepting Dr Woods evidence that his interaction was with a male person, the Tribunal accepts Dr Woods’ evidence on this point as being reliable.
Again, the Tribunal observes ASQA’s concern with the forms used by the Applicant not collecting “enough information” and with the system of checking not being sufficiently documented. However, the Tribunal finds that the Approval to Deliver Form is comprehensive in that it covers the requirements set out in the relevant Standards and in that the Applicant has a satisfactory system for checking the information, as set out in the Approval to Deliver Form, the course procedure document and the Audit Approach.
The Tribunal finds that the Applicant complies with Standards 1.13, 1.14, 1.15 and 1.16.
Standards 2.1 and 2.4
ASQA also alleges that the Applicant is non-compliant with Standards 2.1 and 2.4. These Standards state that:
To be compliant with Standard 2 the RTO must meet the following:
2.1.The RTO ensures it complies with these Standards at all times, including where services are being delivered on its behalf. This applies to all operations of an RTO within its scope of registration. …
2.4.The RTO has sufficient strategies and resources to systematically monitor any services delivered on its behalf, and uses these to ensure that the services delivered comply with these Standards at all times.
ASQA provided the following particulars in Annexure A of how it alleged that the Applicant was non-compliant with Standards 2.1 and 2.4:
ACAS has failed to systematically monitor the courses delivered by auspicees on its behalf, and ensure that all operations for which it is ultimately responsible as an RTO are compliant with the Standards at all times insofar as it has:
· Failed to implement a comprehensive and effective compliance system which enables it to exercise a degree of oversight over the activities of its auspicees that is proportionate to the extent of delegation of responsibility for course delivery it has granted to those auspicees;
· Failed to conduct or document an adequate audit process in relation to the activities of its auspicees, including by conducting audits in a perfunctory and superficial manner, failing to document the materials reviewed as part of the audit, and expressing the findings of the audit without differentiating between courses, units of competency, staff members, pieces of assessment or students;
· Failed to exercise adequate oversight over the training and assessment strategies and practices of its auspicees, the sufficiency of their trainers and assessors, facilities and resources, the support they provide to students, the training and assessment they deliver to students, the qualifications and experience of the trainers and assessors they employ, or their recruitment and enrolment of students; and
· Failed to allocate sufficient resources to be capable of exercising oversight which is effective to ensure that the activities of its auspicess [sic] comply with the requirements of the Standards at all times.
ASQA relied upon the affidavit of Ms Lennox at paragraphs [63]–[71] in support of its submission that the Applicant is non-compliant with Standards 2.1 and 2.4. This section of Ms Lennox’s affidavit was titled, “audit process”.
In the relevant paragraphs of her affidavit, Ms Lennox expressed concerns that the Applicant’s documentation relating to its re-introduced audit process “suffers the same lack of detail and transparency as the other aspects of the Applicant’s compliance system” (see paragraph [65] of the affidavit). Ms Lennox opined that “it appears that the audit process is undertaken at an extremely superficial level” (paragraph [67] of the affidavit) and that there is a lack of evidence of documentation considered and of how assessments regarding compliance are reached (paragraph [66] of the affidavit). She also expressed concerns that while the Audit Plan and Entry Meeting form states that an audit may involve an interview with staff and an inspection of facilities (ST129.1/1550), there was no record made of the persons interviewed or the facilities observed and that it appeared that some reviews were conducted from the websites of auspicees (paragraph [68] of the affidavit). The Tribunal understands the overall concern to be that the Applicant had not retained enough oversight over its auspicees.
In response, the Applicant referred to the various forms and policies that it has in place to ensure compliance by its auspicees on an ongoing basis. These included its Audit Approach (in A86 and Annexure 5), assessment validation, TAS form (A79), the “checking procedure” in its course procedure document (A77), and the Approval to Deliver Form (A80). These forms and procedures have already been discussed above, with the overall finding being that the Applicant’s processes and procedures were sufficient to ensure adequate oversight of the specific Standards.
The Applicant also submitted evidence of specific audits of its auspicees (see A89-92 and A106) in the form of completed audit forms. By way of example, the Audit Plan and Entry Meeting Form for Australian Lutheran College is 19 pages long. It lists each Standard and a breakdown of each Standard with boxes for “evidence”, a “comment”, which have been completed where relevant, and a box for “C/N” to signify compliant or not compliant.
The auditor on this form is listed as the principal of the Applicant, Dr Woods. The Tribunal accepts Dr Woods’ evidence that each audit would have taken between two hours and half a day (transcript/251). In support of its submission regarding Standards 2.1 and 2.4, ASQA referred to the evidence of Ms Trestrail (transcript/43–4), who was of the opinion that the Applicant had left it up to the auspicee to ascertain its compliance with each Standard. However, the Tribunal finds that this view is not supported by the evidence. There appears to the Tribunal to be no evidence of the auspicees assessing themselves as has been suggested. Indeed, the documentation, policies and procedures of the Applicant that are outlined in this paragraph and paragraph [118] above, show that the Applicant has retained oversight and control over its auspicees on an ongoing basis.
With respect to the concern of Ms Lennox that some audits were solely web-based, the Tribunal accepts the evidence of Dr Woods that he undertook the audits by videoconference, rather than simply conducting a web-based audit (transcript/250–1). The Tribunal notes that some improvements could be made by the Applicant regarding the inspection of facilities where the auspicee does not have its own facilities. Dr Woods’ evidence was that he was, however, familiar with these facilities, which included a teaching space in St Catherine’s College at the University of Western Australia, because he attended the teaching location and co-assessed with the instructor (transcript/251).
Standard 2.1 requires that the Applicant is to ensure that it always complies with the Standards, including where services are being delivered on its behalf. Standard 2.4 refers to the RTO being required to have sufficient strategies and resources to systematically monitor any services delivered on its behalf. As submitted by the Applicant in its closing submissions, these Standards do not refer to the requirement for an audit, nor do they specify what must be included in the written record of an audit or in any audit report. Again, the Tribunal observes that ASQA’s concerns relate to an over-reliance on every deliberative process being detailed and documented in an audit document, which would certainly make ASQA’s primarily document-based audit process easier. The Tribunal finds that the Applicant’s Audit Approach, together with its other oversight procedures, involves a detailed annual review of each auspicee’s compliance with each Standard. It is, in the Tribunal’s opinion, more than adequate to ensure oversight over auspicees and to ensure compliance with the Standards. There is also no evidence, other than conjecture, that the Applicant lacks the resources to comply with these Standards.
The Tribunal finds that the Applicant complies with Standards 2.1 and 2.4.
Standard 5.1
Finally, ASQA alleges that the Applicant is non-compliant with Standard 5.1, which provides that:
To be compliant with Standard 5 the RTO must meet the following:
5.1.Prior to enrolment or the commencement of training and assessment, whichever comes first, the RTO provides advice to the prospective learner about the training product appropriate to meeting the learner’s needs, taking into account the individual’s existing skills and competencies.
The particulars of this alleged non-compliance were stated by ASQA in Annexure A as follows:
ACAS has failed to exercise adequate oversight over the recruitment and enrolment of students by its auspicees insofar as it has:
· Failed to ensure that the admissions checklist required to be completed by auspicees is checked, and that auspicees have compliant recruitment and enrolment practices in place, before training and assessment commences; and
· Permitted students to ‘self-enrol’ in its systems, without implementing an effective system to ensure that their enrolment is verified before they have completed the requirements of the course and ACAS is requested to issue a qualification to the student.
In support of these submissions, ASQA referred to paragraphs [72]–[74] of Ms Lennox’s affidavit. Ms Lennox expressed concerns that the Applicant had not retained adequate oversight over its recruitment and admissions process and that, in her opinion, it appeared that this process was undertaken by the auspicee with little oversight by the Applicant.
Ms Lennox was concerned that, although the Applicant had the Admissions Policy which contained an admissions checklist, the only oversight by the Applicant appeared to be during the audit process, which was likely to take place after the student had already been enrolled for several months. Ms Lennox stated in her affidavit that it appeared that students were able to register their own enrolment in the Applicant’s system without proper verification and before they had completed the requirements of the course.
ASQA’s particulars of the alleged breach set out in paragraph [124] above, as well as the relevant paragraphs from Ms Lennox’s affidavit described in paragraph [125] above, go further than what is required by Standard 5.1. Standard 5.1 concerns the provision of advice to students, prior to their enrolment or their first assessment, about the training product appropriate to meeting the student’s needs, considering the individual’s existing skills and competencies.
The Applicant likened its enrolment processes to that of a central administration office of a university (page 53 of Applicant’s closing submissions). More specifically, the policy document titled “Auspicees: Student Information” (A84) provides detailed instructions to auspicees to ensure that the Applicant retains control over the enrolment of new students and to make it clear that the Applicant is the VET provider. This includes requiring that students are provided with links to the Applicant’s website, a link or a printout of the student handbook, and a hyperlink or print out of the relevant page of the Applicant’s course information.
The Applicant further referred to Chapter 2, “Admissions”, of the Applicant’s Admissions Handbook (A50/343), which describes the applications and enrolment process. This document also includes information for the student as to how their suitability will be assessed, including, for example, whether the student is currently working in the “environment of the qualification”. The Applicant also referred to further examples of course information that is provided to prospective students for specific courses (Applicant’s closing submissions, page 55, paragraph [6]; A44, A45, A46).
The Applicant also has the Admissions Policy, which provides detailed admission instructions (A51). These instructions include meeting with the student, directing them to the handbook, providing the student with course specific information (including discussing the students existing skills and competencies with them), assessing their suitability, considering the type of training that the student will need and answering any questions the student may have so that the student is “satisfied that they understand enough about the course when they start” and about the commitment they are making before they commence the course (A51/377). There is also an “Admission procedure form” at the end of the Admissions Policy in the form of a checklist that must be completed and signed off by the admissions officer (A51/380).
Based on the Applicant’s enrolment processes, and the information discussed with and provided to the student as part of the enrolment process, the Tribunal finds that the Applicant is compliant with Standard 5.1.
CONCLUSION
For the reasons set out above, the Tribunal finds that the Applicant is compliant with Standards 1.1, 1.2, 1.3, 1.7, 1.8, 1.13, 1.14, 1.15, 1.16, 2.1, 2.4, 3.1 and 5.1.
Accordingly, the Tribunal finds that the Applicant’s application for renewal of its registration as an RTO should be granted and that it is appropriate to remit the matter back to the Respondent to determine the period for which the Applicant is to be registered as a result of the renewal (s 31(3B)(a) of the NVR Act).
RECOMMENDATIONS
The conduct of the Audit undertaken by ASQA is not before the Tribunal to review. However, as mentioned at paragraph [7] above, the Tribunal has a role in promoting good government decision-making (Ielati and Secretary, Department of Social Services [2018] AATA 4276 at [40]–[42]). The Tribunal can therefore make recommendations or observations that may be used to improve future administration.
The Applicant has responded in a timely fashion to requests from ASQA. However, the same cannot be said for ASQA. The Applicant submitted its renewal application on
20 June 2018, approximately four months before its registration was due to expire. ASQA then decided to conduct the Audit and advised of its intention to do so on 17 December 2018, being approximately two months after the expiration of the Applicant’s RTO registration. After a process of requesting information from the Applicant, the Audit did not take place until 11 and 12 March 2019 and yet there were more delays. The audit report was not finalised until 8 April 2019 and was not actioned until 25 June 2019. Once the audit report was received, the Applicant responded within one month, but the audit report was not updated until 12 August 2019. It was not until 21 August 2019, that the Reviewable Decision was sent to the Applicant, some 15 months after the Applicant made its application for renewal of RTO registration.
This protracted process is at odds with the object of protecting students (s 2A(e) of the NVR Act) who undertake or propose to undertake vocational education and training. Such a delay could cause detriment to students who may have expended time and money enrolled in a course that is later found not to comply with the Standards and that they should never have been able to enrol in in the first place if timely action had been undertaken by ASQA. In short, the timing of the Audit and the length of time it took ASQA to conduct the Audit is concerning to the Tribunal.
Recommendation 1
ASQA should investigate why it was not until after the Applicant’s registration expired that the Audit was undertaken. It should also investigate why the Audit process was so protracted and why there were significant time delays between producing the audit report and advising the Applicant of the outcome.
As discussed earlier in these reasons, it appears to the Tribunal that ASQA's audit is excessively document-based. As such, there appears to have been an expectation that every decision made, and every deliberative process undertaken by the Applicant be documented to make the process of a document-based audit easier. However, this additional requirement of documentation is unnecessary, unrealistic, and administratively burdensome upon applicants in general. With respect to this application, the Applicant has detailed forms, policies, procedures and practices in place to ensure compliance with the Standards by both the Applicant and the auspicees.
In ASQA’s reply to the Applicant’s closing submissions, ASQA suggested that the Applicant had a “trust me, I’m ok” approach, which, it was submitted “involves a fundamental misconception of the evidence-based regulatory regime established under the legislation”. However, there is substantial evidence before the Tribunal of compliance with the Standards by the Applicant and an over-reliance on documentation by ASQA.
ASQA referred to the following quote from Re Austwide Institute of Training Pty Ltd and Secretary, Department of Education and Training [2016] AATA 266 at [76]:
It is obvious that a regulator in the position of the Respondent cannot be sitting in the class room for each class and each examination conducted by registered providers. In discharge of its regulatory function, such a regulator needs to look at objectively observable indicators of performance of an organisation against benchmarks, which in this setting include providing evidence based quality training and assessment. … The structure of the NVR Act calls for more than a trust me, I’m ok approach. It calls for evidence of compliance with standards that allows an objective observer to come in and relatively quickly form a view as to whether the requisite quality of training and assessment based on that evidence exists in a particular case.
However, whilst ASQA cannot be present in the classroom at all times, it can and should be expected to conduct thorough and comprehensive audits of RTOs. The Tribunal finds that an over-reliance on an RTO documenting every deliberative process and only spending a maximum of one and a half hours on site is insufficient for ASQA to discharge this obligation of conducting a thorough and comprehensive audit.
Recommendation 2
Instead of undertaking what is primarily, and almost solely, a document-based audit, the Tribunal recommends that ASQA’s auditors extend the time spent in the field by conducting more extensive site visits to RTOs and their teaching and learning facilities. These site visits should include activities such as interviewing the administrative and teaching staff about the day to day implementation and operation of policies, procedures and processes and how they otherwise ensure compliance with the Standards. Site visits should also include interviewing students, observing teaching, and reviewing course and unit outlines, lesson plans, teaching materials and samples of student work and feedback. The Tribunal suggests that a realistic time frame would be that auditors spend two to three days, rather than two to three hours, in face to face site visits to RTOs. This, when undertaken together with a review of relevant documentation, is likely to give a far more accurate overview of the compliance of an RTO than what is currently almost solely a document-based review.
DECISION
The Reviewable Decision of the Chief Commissioner of ASQA dated 15 August 2019 is set aside.
The matter is remitted to ASQA with a direction that the renewal of the Applicant’s registration should be granted because the Applicant complies with s 17(2) of the NVR Act.
I certify that the preceding one hundred and forty-three (143) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner
....[Sgd]....................................................................
Associate
Dated: 20 May 2021
Dates of hearing: 28 July 2020, 15 October 2020, 16 October 2020 and 5 November 2020 Date final submissions received: 4 February 2021 Applicant: Self-represented Respondent: Ms P Seng, ASQA Counsel for the Respondent: Mr S Rebikoff
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