Brighton Pacific Pty Ltd and Australian Skills Quality Authority
[2019] AATA 3645
•19 September 2019
Brighton Pacific Pty Ltd and Australian Skills Quality Authority [2019] AATA 3645 (19 September 2019)
Division: General Division
File Numbers: 2019/0921, 2019/0992 and 2019/0995
Re: Brighton Pacific Pty Ltd
APPLICANT
Australian Skills Quality AuthorityAnd
RESPONDENT
DECISION
Tribunal: Deputy President Ian Hanger AM QC
Date:19 September 2019
Place:Brisbane
The Tribunal:(a)Sets aside the decision to cancel the applicant’s registration under section 39 of the National Vocational Education and Training Regulator Act 2011 (Cth) and directs that the renewal of registration for a period of three years be subject to the conditions set out in these reasons;
(b)Sets aside the decision to cancel the applicant’s registration for all courses at all locations under section 83(3) and 93(4) of the Education Services for Overseas Students Act 2000 (Cth) and directs that the renewal of registration for a period of three years be subject to the conditions set out in these reasons; and
(c)Affirms the decision to refuse the applicant’s application to change its CRICOS registration.
...................[sgd]....................................
Deputy President Ian Hanger AM QC
Catchwords
HIGHER EDUCATION - registered training organisation – non-compliance with regulatory standards – PRISMS – student complaints - decision to cancel the applicant’s registration under the National Vocational Education and Training Regulator Act 2011 – decision under review set aside - decision to cancel the applicant’s registration under the Education Services for Overseas Students Act 2000 – decision under review set aside – conditions on registration - decision to refuse the applicant’s application to change its CRICOS registration – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Education Services for Overseas Students Act 2000 (Cth)
National Vocational Education and Training Regulator Act 2011 (Cth)
Cases
Shi v Migration Agents Review Authority (2008) 235 CLR 286
Secondary Materials
ELICOS Standards 2018
Standards for Registered Training Organisations 2015
National Code of Practice for Providers of Education and Training to Overseas Students 2018
REASONS FOR DECISION
Deputy President Ian Hanger AM QC
19 September 2019
The principal issue in this matter is whether the applicant should be registered as a training organisation under the National Vocational Education and Training Regulator Act 2001 (the NVR Act) and on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS).
BACKGROUND
The applicant was registered as a Registered Training Organisation (RTO) under the NVR Act on 4 May 2015 and trades under the name of Australia Institute of Business & Technology. It was registered pursuant to the Education Services for Overseas Students Act 2000 (the ESOS Act) on 29 July 2015. It markets its offerings via a shared website with its related RTO Australian Institute of Business & Technology – International Pty Ltd (AIBTI), which obtained registration in 2017. The applicant also has a third party agreement with AIBTI for AIBTI to deliver training and assessment for some training products on behalf of the applicant. The applicant’s courses are offered across four locations, two in New South Wales (at Blacktown and Ultimo), one in Queensland (in Upper Mount Gravatt) and one in Tasmania (in Hobart).
The applicant had approximately 2500 students enrolled and undertaking courses, and employed some 160 people. As at 11 September 2018 it offered more than 70 courses within the scope of its VET registration, including two English Language Intensive Courses for Overseas Students (ELICOS) courses and under its CRICOS registration was able to offer 91 courses to nearly 3500 students. The courses span a range of offerings including business, health, sciences, community services, information technology, technical sciences, hospitality and aviation as well as an English language course.
By three letters dated 19 February 2019 (collectively, the “Decision Letters”), the respondent notified the applicant of three decisions that would bring the applicant’s operations to an end:
1a decision to cancel the applicant’s registration under section 39 of NVR Act (NVR Act Decision);[1]
2a decision to cancel the applicant’s registration for all courses at all locations under section 83(3) and 93(4) of the ESOS Act (CRICOS Cancellation Decision);[2] and
3a decision to refuse applications by the applicant to change its CRICOS registration on the grounds that the requirements of section 10J(1) of the ESOS Act were not meet (CRICOS Refusal Decision).[3]
[1] Exhibit 1, section 37 T-Documents, T65.
[2] Exhibit 1, section 37 T-Documents, T66.
[3] Exhibit 1, section 37 T-Documents, T67.
The decisions were based on an alleged failure by the applicant to comply with the regulatory standards contained in the Standards for Registered Training Organisations 2015 (RTO Standards), the National Code of Practice for Providers of Education and Training to Overseas Students 2018 (National Code) and the ELICOS Standards 2018 (ELICOS Standards).
The decision letters do not particularise the alleged non-compliances in detail. The findings of non-compliance are contained in a document dated 25 January 2019 and entitled “Audit report: Brighton Pacific Pty Ltd”.
HISTORY LEADING UP TO CANCELLATION
On 28 May 2018 the respondent issued a compulsory notice pursuant to section 26 of the NVR Act requiring the applicant to provide information as to whether the applicant was complying or has complied with the their obligations under the NVR Act.[4] This information was subsequently provided on 15 June 2018.
[4] Exhibit 1, section 37 T-Documents, T2-T3.
On 30 July 2018, the applicant was informed of the respondent’s intention to conduct an audit.[5] A site audit was conducted between 7-10 August 2018 across two of the applicant’s campuses, those being in Upper Mount Gravatt and Blacktown, as well as the applicant’s engineering workshop at Seven Hills, New South Wales. In addition, a review of Provider Registration and International Student Management Systems (PRISMS) data pertaining to the applicant and its overseas student enrolments during the period of 25 September 2017 and 4 October 2018 was undertaken by an officer of the respondent.
[5] Exhibit 1, section 37 T-Documents, T12.
The applicant was advised during the site audit and again on 3 September 2018 that the respondent had found non-compliances and that it would have 20 working days to respond once it received a notification letter from the respondent. The detailed audit report and annexures was finalised on 12 October 2018.[6] The applicant was advised on 16 October 2018 that the respondent had made a preliminary decision based on the non-compliances found within the audit’s findings.[7] The applicant was invited to submit a written response and any additional evidence by 14 November 2018. The audit identified that the applicant was not compliant with a number of regulatory requirements pertaining to its obligations both as an RTO and as a provider of education to overseas students.
[6] Exhibit 1, section 37 T-Documents, T43-T49.
[7] Exhibit 1, section 37 T-Documents, T50-T51.
The time for a response by the applicant was extended to 21 November 2018. On 22 November 2018 the applicant submitted its response. The response was analysed by the respondent and it was determined that the applicant had not provided evidence to demonstrate and/or conclusively confirm that it was compliant in a number of areas.
On 19 February 2019 the applicant lodged with the Administrative Appeals Tribunal (the Tribunal) an application for review coupled with an application for stay of the decisions and a conditional stay was granted.
The role of this Tribunal is to make the correct and preferable decision, not, as at the time when the decision was made, but as at today’s date.[8]
[8] Shi v Migration Agents Review Authority (2008) 235 CLR 286 at 298, 314, 327-8.
The material in these proceedings was voluminous and probably exceeded 100,000 pages. Some of it was printed and some of it was provided electronically.
FURTHER MATERIAL IN THESE PROCEEDINGS
Submissions for the applicant
Oral evidence was given for the applicant by Ms Kee, Ms Casella and Mr Khan and a large amount of material was contained in affidavits.
The applicant submits that:
(a)the decisions were made by the respondent on the basis of findings of non-compliance in the final audit report. A number of those findings were made in error;
(b)many non-compliances were correctly identified. The applicant has conducted a comprehensive review of those matters and remedied the non-compliances. It has proactively introduced a number of systems and processes to ensure that non-compliances do not recur;
(c)the findings of non-compliance at the time of the audit must be viewed in context. The applicant was found to be compliant with the overwhelming majority of standards in respect of which it was audited. The audit related to only a small proportion of its courses and the available evidence suggests that the applicant’s non-audited courses are compliant. Many of the non-compliances identified were minor;
(d)the non-compliances at the more serious end of the spectrum were not the result of any dishonesty or misconduct with one exception concerning one student. That was an isolated instance that is being investigated;
(e)the more serious non-compliances had no adverse impact on students. The evidence is that there is a high degree of student satisfaction with the courses of the applicant; and
(f)cancellation would be disproportionate and unduly severe.
The applicant submits that there have been shortcomings and that it would be appropriate, rather than cancelling its registration, to impose some conditions.
Submissions for the Respondent
Oral Evidence was given for the respondent by Ms Harvey, Ms Noble, Ms Keller, Mr Wright, and Ms Owen. The Tribunal also had access to a great deal of documentary evidence, including numerous reports and affidavits.
The respondent submits that the three decisions under review should be affirmed.
It submits that when consideration is given to the objects of the NVR and ESOS Acts and the admitted breaches by the applicant, cancellation is the only suitable sanction because any other sanction risks sending a message to the VET sector, to international students and to the countries from which they come that Australia tolerates actions by a VET education provider which are inconsistent with Australia’s migration laws, harms students and involved provision of a standard of training and assessment which is inadequate.
The respondent points to the fact that the scheme of the relevant legislation is that education providers must self-regulate and must remain compliant at all times. The respondent expresses a concern that a failure to sanction the applicant sends a message to providers that they can rely on the taxpayer funded actions of the respondent to constitute their compliance system and merely selectively rectify issues once they have been identified by the respondent. That is not the role of the respondent.
The respondent submits that the sheer number of breaches detected across the audited samples is concerning and more concerning because it demonstrates that there is an absence of systems preventing non-compliance from occurring, and detecting such non-compliances when they do occur. If there was an appropriate system of monitoring and evaluation as required it would be expected that concerns would be minor and lead to prompt corrective action. The respondent submits that the applicant has not shown enough judgement to realise that it should have engaged an expert to assist it after the audit to develop compliant systems and practices. Therefore, the respondent submits, one cannot have confidence that in the future the organisation will become more compliant.
The respondent also relies on frequent breaches relating to PRISMS. This is a matter that should be regarded very seriously as some breaches of obligations in respect of PRISMS constitute offences. Some of those breaches continued even after the audits and after staff had undertaken further training and claimed that further breaches would not occur.
The respondent submits that the applicant does not have a proper student complaint handling system and processes and takes no action to enforce its own policies with respect to the conduct of trainers. By way of an example, one trainer told a student that he would mark him present even though he knew he was absent. Obviously such things will periodically happen but the complaint of the respondent is that the applicant did not appear to appreciate the seriousness of such conduct and had taken no action against the errant employee.
The respondent also refers to a document in its written closing submissions from the Department of Immigration and Border Protection which contains the following sentence, “this provider has come to our attention following the identification of a significant number of non-genuine students enrolled with this provider. Some of these students have been involved in serious fraud.”[9]
[9] Exhibit 1, section 37 T-Documents, T8, page 72.
No mention was made of this document during the hearing and no evidence was presented to establish anything of this nature. I presume that if there was any truth in the suggestion, it would have figured prominently in these proceedings. I therefore disregard it.
DISCUSSION OF EVIDENCE
During the final addresses I asked counsel for the respondent as to what the respondent regarded as the most serious conduct engaged in by the applicant and reference was made to the breaches in relation to PRISMS. Therefore I will deal with that matter first before the other matters raised within the audit reports.
PRISMS
As a CRICOS provider, the applicant is required to submit certain information about overseas students to the Australian Government via PRISMS. This secure student management site allows for the issuing of ‘Confirmation of Enrolments’ (CoE) for international students and requires an education provider to report any changes in course enrolment. This allows for government departments, such as the Minister for Home Affairs, to monitor both the student’s compliance with their visa conditions and the provider’s compliance with the ESOS Act.
Relevant Legislation
The following sections of the ESOS Act are relevant:
19 Giving information about accepted students
1A registered provider must give the following information within the applicable number of days after the event specified below occurs:
(a)the name and any other prescribed details of each person who becomes an accepted student of that provider;
(b)for each person who becomes an accepted student—the name, starting day and expected duration of the course for which the student is accepted;
(c)the prescribed information about an accepted student who does not begin his or her course when expected;
(d)any termination of an accepted student’s studies (whether as a result of action by the student or the provider or otherwise) before the student’s course is completed;
(e)any change in the identity or duration of an accepted student’s course;
(f)any other prescribed matter relating to accepted students.
…
46F Registered providers to notify of outcome of discharge of obligations
1A registered provider that defaults, in relation to one or more overseas students or intending overseas students and a course at a location, must give a notice in accordance with this section.
2The provider must give a notice to the ESOS agency for the provider and the TPS Director within 7 days after the end of the provider obligation period.
…
47H Registered providers to notify of outcome of discharge of obligations
1A registered provider must give a notice in accordance with this section if:
(a)an overseas student or intending overseas student defaults in relation to a course provided by the provider at a location; and
(b)the provider is required to provide a refund under section 47E.
2The provider must give a notice to the ESOS agency for the provider and the TPS Director within 7 days after the end of the provider obligation period.
…
108 Providing false or misleading information
A person commits an offence if the person provides false or misleading information in complying or purporting to comply with any of the following provisions:
(a)section 13 (TPS Director may require information);
(b)section 19 (giving information about accepted students);
(c)section 20 (sending students notice of visa breaches);
(d)subsection 26(1) or (3) (disclosure obligations of registered providers).
The relevant parts of the National Code 2015 are as follows:
Clause 8.2
The RTO ensures that any third party delivering services on its behalf is required under written agreement to cooperate with the VET Regulator:
·by providing accurate and factual responses to information requests from the VET Regulator relevant to the delivery of services
·in the conduct of audits and the monitoring of its operations.
Clause 8.3
The RTO notifies the Regulator:
(a)of any written agreement entered into under clause 2.3 for the delivery of services on its behalf within 30 calendar days of that agreement being entered into or prior to the obligations under the agreement taking effect, whichever occurs first, and
(b)within 30 calendar days of the agreement coming to an end.
Clause 8.5
The RTO Complies with Commonwealth, State and Territory legislation and regulatory requirements relevant to its operations.
Final Audit Report in relation to PRISMS
As part of the Final Audit Report, the respondent analysed data entered into PRISMS by the applicant between 26 September 2016 and 4 October 2018. The Tribunal notes that since around 2016, the Applicant’s authorised users of PRISMS have entered information into PRISMS in excess of 67,000 times. Within this, the respondent found that the applicant was in breach of the following;
(a)116 occasions where the applicant had failed to report information within the timeframe required by section 19(1)(c)-(f) of the ESOS Act, or failed to report the outcome of a provider default under section 46F of the ESOS Act; and
(b)1,775 occasions where the applicant failed to give notice via PRISMS of a student default pursuant to section 47H of the ESOS Act.
Reporting Information
In relation to reporting information within the timeframe required by section 19(1), the respondent found that the applicant had failed to report information as follows:
(a)on 69 occasions where the applicant provided through PRISMS information about students who did not begin their course on the commencement date. The information, although provided, was out of time and therefore in breach of section 19(1)(c) of the ESOS Act;
(b)on 7 occasions where the applicant provided through PRISMS information about students who had terminated their studies. Once again, this information was provided but it was out of time and in breach of section 19(1) (d) of the ESOS Act;
(c)on 30 occasions where the applicant provided through PRISMS information about students' course identity and duration. As this information was provided out of time, it was therefore in breach of section 19(1)(e) of the ESOS Act; and
(d)on 7 occasions where the applicant provided through PRISMS information about the deferral or suspension of students' CoEs, but this information was not provided within the required timeframe in breach of section 19(1)(f) of the ESOS Act.
The evidence before the Tribunal reflects that the reason behind these breaches was a deficiency in the applicant’s processes at the time, which accounted for 83 of these breaches, and the remaining 33 occasions resulted from ‘human error’. The applicant has subsequently updated all identified inaccuracies in PRISMS.
The Tribunal notes that the applicant has now implemented changes to their processes to reduce the risk of human errors recurring and ensure future compliance, including additional training provided to members of the Enrolment Team who have access to PRISMS. I find the applicant has openly acknowledged its short comings in this area and has taken genuine steps to ensure that its personnel accurately record student data in PRISMS in the timeframes required under the ESOS Act.[10]
[10]Exhibit 8, Annotated Compliance Reports, Compliance Report (Part II) dated 15 May 2019, paragraphs 236-241.
In relation to the applicant’s failure to report the outcome of a provider default, the respondent analysed the applicant’s PRISMS data relating to all student course variations for the period of 26 September 2016 to 4 October 2018. Within this period, the respondent found 3 occasions where a student’s CoE was cancelled for the reason ‘provider unable to deliver course’.
Pursuant to section 46F of the ESOS Act, the applicant was required to notify the outcome of their discharge of any obligations in respect of these three overseas students. However, in all three instances, the reason for the cancellation of the CoE entry into PRISMS was a ‘human error’, and evidence was provided that in each case the reason was not ‘provider unable to deliver course’, as had originally been entered into PRISMS.[11] The applicant has subsequently updated PRISMS to address all identified inaccuracies.
[11] Exhibit 8, Annotated Compliance Reports, Compliance Report (Part II) dated 15 May 2019, paragraphs 227-231.
Giving notice via PRISMS of a student default
On 4 September 2018, the respondent analysed CoE data in PRISMS of the applicant’s enrolments created in the period between 4 October 2017 and 4 October 2018. Within this limited scope, the respondent had found 1,775 possible breaches of section 47H of the ESOS Act.
During this period, Mr Branjerdporn was the Head of Finance with the applicant and was an authorised user of PRISMS. For and on behalf of the applicant, Mr Branjerdporn had created a CoE for each accepted student who was located offshore and had had their enrolment cancelled after their visa was refused. The applicant was accordingly obliged to refund the course money to these overseas students. The respondent made a finding that on at least 1,775 occasions, the applicant failed to give notice via PRISMS of a Student Default pursuant to section 47H of the ESOS Act.[12] There was no suggestion that it had failed to return the course money.
[12] Exhibit 1, section 37 T-Documents, T62, page 586.
Ms Kee has stated that following the respondent’s finding, she caused the applicant to ‘undertake immediate steps to undertake a reconciliation to ensure that all required notices were given and any required student refunds made’.[13] Since October 2016, the applicant has updated PRISMS with the required information in respect to student defaults and is currently not aware of any outstanding refunds to be issued.[14]
[13] Exhibit 6, Applicant’s Tribunal Bench Book, Volume 1, Part A, page 48, paragraph 279.
[14] Exhibit 8, Annotated Compliance Reports, Compliance Report (Part II) dated 15 May 2019, paragraphs 232-235.
At the time that these breaches occurred, the applicant acknowledges that there was no system to quality check the entry of this particular data into PRISMS. Similarly to the reporting obligations listed above, the Tribunal notes that the applicant has subsequent to the audits implemented new processes to ensure their obligations under section 47H of the ESOS Act are complied with.
Authorised User of PRISMS
Mr Branjerdporn resigned from his position with the applicant in December 2018 and was no longer considered an employee of the applicant. However payslips for Mr Branjerdporn were provided which indicated that he had been paid and continued as an employee until 3 February 2019.[15] Mr Branjerdporn now owns a rival RTO.
[15] Exhibit 17, Payslips of Mr Branjerdporn for the period 10/12/2018 to 03/02/2019.
The Monitoring Student Attendance and Academic Progress Policy and Procedure’s Conditions of Access and Use,[16] states as follows:
The Provider must notify the Department of Education and training immediately if an Authorised User ceases employment with the Provider or is no longer authorised to use PRISMS.
[16] Exhibit 3, Supplementary Tribunal Documents, ST149, page 10,852.
Mr Branjerdporn had accessed PRISMS in January upon the applicant’s request to assist with ‘the preparation of AVETMIS reporting to the Department of Education and Training’.[17] As the deactivation of Mr Branjerdporn PRISMS access was only effected in June, it is apparent that he could have had access to PRISMS up and until that point. That should not have occurred. Notice should have been given when he ceased to be an employee on 3 February 2019. However there is nothing before the Tribunal that indicates that Mr Branjerdporn used his PRISMS access after his brief work in January.
[17] Exhibit 8, Annotated Compliance Reports, Compliance Report (Part III) dated 18 June 2019, paragraph 218.
Ms Owen
Ms Owen has been a Senior Policy Officer at ASQA since July 2015. Ms Owen was tasked with reviewing data contained in PRISMS with respect to the applicant to review its compliance with various provisions of the ESOS Act relating to the reporting of student course variations. These findings were contained within the audit report finalised 12 October 2018.[18]
[18] Exhibit 1, section 37 T-Documents, T43-T49.
Ms Owen identifies 47 occasions between 1 January 2017 and 24 May 2019 which are a breach of the applicant’s reporting obligations under subsection 19(1)(e) of the ESOS Act, and consequently, involve an offence under section 108 of the ESOS Act. Ms Owen states the following at [1.8] – [1.9] of her report:[19]
[1.8] In practice, if a registered provider extends the duration of an accepted student’s course beyond the original duration specified on the accepted students CoE, the provider is obliged to report this extension by creating a student course variation in respect of the accepted student’s CoE identifying the course as having been extended, and providing the relevant prescribed information required under 3.02 of the Education Services for Overseas Students Regulations 2001 (the ESOS Regulations).
[1.9] By creating a second enrolment immediately following ‘completion’ of the first enrolment in the identical course for an overseas student, Brighton is extending the duration of overseas student’s course. By failing to report this as an extended duration, and instead creating a new subsequent enrolment for the overseas student in the same course, Brighton Pacific is masking the student course variation it is obliged to report under paragraph 19(1)(e) of the ESOS act, and as a consequence is creating misleading information in purporting to comply with section 19(1) of the ESOS Act.
[19] Exhibit 5, Respondent’s Bench Book, Witness Statement of Katherine Owen, annexure KEO-2, paragraphs 1.8–1.9.
The applicant’s established process for granting extensions in instances where the end date of the student’s CoE has passed is for the enrolments team to issue a new CoE for the same course commencing at a later date.[20] This process is what Ms Owen refers to as ‘masking’ and is of the opinion that the continuation of this process fails to comply with section 19 of the ESOS Act. The applicant contends that this process has been adopted in good faith in accordance with their policies, and aligns with advice provided by the PRISMS help desk that, in such circumstances, “you can create a new CoE or you could also create an extension CoE”.[21]
[20] Exhibit 8, Annotated Compliance Reports, Compliance Report (Part III) dated 18 June 2019, paragraphs 205-206.
[21] Exhibit 7, Applicant’s Supplementary Bench Book, Volume 6, page 3701.
In her oral evidence, Ms Owen stated that by creating subsequent enrolments, it ‘masked’ the student course variation and in effect hid this from her and the Department of Home Affairs. Ms Owen contended that these comments did not go towards the reasoning or intention behind why the applicant had created subsequent enrolments, but stated:[22]
Providers are obliged to give reasons for certain types of course variation. So, in extending a student, they’re required to report that. That is because it is relevant to a visa monitoring purpose. And so, in the absence of such a report being made, when multiple CoEs aligned in the same identical course for the same student, one after another, then yes it is my responsible belief that an extension should have been reported and that is what I have said here.
[22] Transcript, Day 6, page 428, line 39-45.
The respondent made submissions that the only purpose that can be inferred is that this process is undertaken by the applicant to prevent a report being generated to the Department of Home Affairs that would adversely affect the student. The Tribunal makes no finding that this was the applicant’s intention in undertaking their approach.
Although there does not appear to be any evidence that this ‘masking’ is deliberate, the practical effect of offering new courses as opposed to extensions is that the Department of Home Affairs is not made aware of the students’ lack of course progression. The Department of Home Affairs is unable to monitor student’s visa obligations and enforce visa consequences without accurate information inputted into PRISMS by the RTO.
Ms Owen has identified a further 59 occasions between 2 February 2019 and 24 May 2019 on which Brighton is alleged to have breached section 19(1)(c)-(f) of the ESOS Act by failing to provide information within the prescribed 31 day period.[23] These appear to have been dealt with in the Third Compliance Report,[24] which was made subsequent to Ms Owen’s report. These predominately appear to involve a deficiency in the applicant’s process (which has subsequently been rectified by the applicant), as a consequence of correcting those errors, or some variation of human error.
[23] Exhibit 5, Respondent’s Bench Book, Witness Statement of Katherine Owen, paragraphs 27.1-27.4; annexure KEO-2, paragraphs 3.1-3.26.
[24] Exhibit 8, Annotated Compliance Reports, Compliance Report (Part III) dated 18 June 2019, paragraphs 187-201.
Student Addresses
Section 21 of the ESOS Act states:
Records of students’ details
1A registered provider must keep records of each accepted student who is enrolled with the provider or who has paid any tuition fees for a course provided by the provider.
2The records must consist of the following details for each accepted student:
(a)the student’s current residential address;
(b)the student’s mobile phone number (if any);
(c)the student’s email address (if any);
(d)any other details prescribed by the regulations.
2A A registered provider must have a procedure to ensure that, at least every 6 months, while the student remains an accepted student of the provider:
(a)the provider confirms, in writing, the details referred to in subsection (2) with the student; and
(b)the records are updated accordingly.
In response to allegations that the applicant had no procedure in place to ensure that they were compliant with section 21(2A) of the ESOS Act, Ms Kee produced three emails attached to her eighth affidavit.[25] These emails were from a staff member of the applicant dating back to April 2018. These served as a reminder to all students recorded on their IT database that they were required to update the applicant of their Australian address and other details if they had changed.
[25] Exhibit 13, Ms Kee’s Affidavit dated 1 July 2019, attachment FK-44.
The applicant contends that this procedure, in addition to the students being informed of this obligation during their orientation week, within their student enrolment application form and their student handbook,[26] is sufficient to comply with this section.
[26] Exhibit 13, Ms Kee’s Affidavit dated 1 July 2019, paragraph 9.
These emails are sufficient to show that a procedure existed which attempts to comply with this section, despite the fact the Tribunal has no information as to a specific list of the individual recipients, any emails prior to April 2018 or any responses from students to the emails. It is not in contention that one period between the three emails was 2 weeks over the ‘at least every 6 months’ period required. This was described by the applicant in their closing written submissions as ‘regrettable but hardly a basis for cancelling Brighton’s registration.’ A contravention of section 21 of the ESOS Act is an offence of strict liability, and therefore it is argued that it is irrelevant as to how minor the breach may be.
Even if these emails had been sent at least every 6 months as is required, the Tribunal has concerns that this procedure is only a reminder to the students of their obligation to inform the provider of any change in their residential address. It is not a confirmation of the records held by the provider. It is apparent from this process that it is insufficient to assume that no response from a student to such an email would indicate that the student’s address has not changed. A system needs to be devised to ensure that the student responds positively each time by confirming their address.
Ms Kee gave an undertaking that it was her intention, with the assistance of other staff within the company, to design a process that incentivises students to update their contact details and prepare a documented procedure recording how the Applicant complies with its obligations under section 21 of the ESOS Act.[27] The Tribunal notes that if such a process was implemented by the Applicant, the Tribunal could be satisfied that the applicant would be compliant with section 21(2A) of the ESOS Act in the future.
[27] Exhibit 13, Ms Kee’s Affidavit dated 1 July 2019, paragraph 17.
The Tribunal however does have concerns with the issues arising from cross-examination of Ms Kee in that no processes has been designed to flag to the applicant when a student’s address may contain a discrepancy. An extrapolation of the spreadsheet created on 24 May 2017 by Ms Owen, sourced from the applicant’s entries into PRISMS, contained data on over 300 students with a CoE status of ‘studying’ at the applicant’s campus in Hobart.[28] The vast majority of these students however had their Australian residential addresses recorded on PRISMS in a separate state or territory.
[28] Exhibit 9A, Extrapolation of ST146.
Ms Kee gave evidence at the hearing that she would be concerned that a student would have a residential address in Queensland when the course location is in Tasmania, but said that it would not surprise her. Ms Kee listed circumstances where a student may have an address interstate from the campus the student is attending for their practical study.
Ms Kee stated that on one previous occasion, a discrepancy had been brought to the applicant’s attention. In that instance, the applicant had inquired as to why the student provided an interstate address. The answer received was that the student travelled interstate to study. The Tribunal would find it hard to accept that such an explanation would be credible for the students studying in Hobart and would share Ms Kee’s concerns.
For the purpose of interpreting the information before the Tribunal and in the absence of any information to the contrary, it was assumed by the parties that these students have commenced their course. If a student had not commenced their course, the applicant would have been required to notify within 31 days of the non-commencement and record this information in PRISMS.
It appears that on the evidence, the applicant had information which should have been apparent that they had not received updated addresses from those students who were undertaking courses in Hobart yet had recorded residential addresses interstate. The Tribunal believes this information, which was available to the applicant for some time, should have resulted in further inquiries to be made into such obvious discrepancies.
Consequences flowing from these breaches
Information contained within PRISMS is the information that the Department of Home Affairs relies upon to determine whether an international student has breached a condition of their student visa to be in Australia. Both the ESOS Act and the National Code contain mechanisms to ensure that students’ visa obligations are upheld during their study in Australia. It is therefore imperative, in order for Australia to adhere to its migration laws and policy, for providers to ensure that their obligations to update PRISMS under the ESOS Act and the National Code are met. Doubtless for this reason the offences for breach of provisions of the act are strict liability offences.
Ms Kee gave evidence, as the CEO for the applicant. She understands that the Department of Home Affairs relies upon information provided by the applicant in relation to their study obligations under their visas, such as information regarding the student’s commencement of studies. Ms Kee has also stated that she understood the importance in her reporting obligations.
The respondent’s submissions have by and large been concentrated on what is required by the ESOS Act, the objective of which is to complement migration laws by ensuring providers collect and report information relevant to the administration of the law relating to student visas. The Tribunal accepts the respondent’s submission that at the time of the audit, any decision the Department of Home Affairs may have made in relation to the breaches regarding the applicant’s reporting obligations were not able to be ascertained.
However no material has been put before this Tribunal during this hearing to show that the failures identified above were deliberate or resulted in abuse of the complex system established to regulate migration.
Ms Kee
Ms Kee is the CEO of the organisation and gave evidence for several days. At times during cross-examination there were some communication difficulties between her and counsel but I found her to be an intelligent and honest witness. She acknowledged failings in the organisation where that was appropriate. She advised of what steps were being taken to remedy the failings. At times, she did not concede an alleged failing and, whether right or wrong, was able to explain why she adopted the view that she did. Generally speaking I accept her evidence.
The respondent submits that she was dishonest in her evidence. There were undoubtedly times when she was mistaken. She apologised for her errors but I am satisfied that the errors were not deliberate. However, she was responsible for an organisation that in many respects failed to comply with the high standards expected and which are very properly sought to be enforced by the respondent. The organisation had expanded exponentially over a very short period of time.
The Audit other than PRISMS issues
As submitted by the respondent, the legislative scheme that relates to education providers in the private sector is designed in such a way as to provide that RTO’s are self-regulating. To this end, certain Standards are mandated. An organisation must comply with those standards. They are designed to ensure a proper education for students; to ensure a consistent standard across the whole country; and to ensure that the level of education provided in Australia is well respected both nationally and internationally.
In order to ensure compliance with standards the respondent is charged with the task of accrediting education providers and auditing them to ensure that they are complying with the Standards. Before an audit is conducted the respondent determines in which areas and which Standards it will audit. Doubtless, it gives careful consideration to the areas that it will look into prior to the audit. However an audit is by definition merely an examination of segments of all that an organisation does. If there is a failure to comply with standards that appears to occur repeatedly during the course of the audit then common sense dictates that there is likely to be a systemic failure. That is a far more serious concern than failures that appear to be random or isolated.
The greatest emphasis should be placed on the initial audit report and the response to it of an organisation because that is done to ascertain how well the organisation is functioning at that point in time. That is likely to give the clearest picture. Subsequent reports merely show whether or not the organisation has attended to problems identified in the first report and whether the organisation is making serious efforts to address those problems.
The final audit report provided by the respondent identified a number of compliance issues other than breaches of PRISMS that became the subject of evidence in these proceedings. The applicant submits the number of the findings that refer to non-compliance would be more appropriately described as a failure to provide evidence that demonstrates compliance.
Some instances given in evidence about the alleged non-compliance
One example referred to by the applicant relates to a finding in the initial audit report that there were certain inaccuracies in descriptions of courses on the applicant’s website. The applicant says that it remedied those inaccuracies prior to the final audit report and that the respondent proceeded to find that the applicant was non-compliant because it had not provided evidence that demonstrated that all information whether disseminated directly or on its behalf was now accurate and addressed the requirements of clause 4.1 in the Standards. The applicant established that it has taken steps now to confirm that all the information being disseminated is accurate and to minimise the risk of it occurring again.
A second example provided by the applicant related to the qualifications of a trainer and assessor. The respondent did not find that a particular trainer (Ms Van Zyl) was unqualified. It merely was not conclusively satisfied that she was qualified. That is a reasonable approach for an auditor to take but it was subsequently established that she was qualified.
The respondent placed great weight on the applicant’s failure to comply with clause 1.8 of the 2015 Standards which I set out hereunder:
Clause 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
(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
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
§ 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
§ 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
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.
Under the above Standard the RTO is obliged to implement an assessment system that complies with the assessment requirements of the relevant training package or VET accredited course and is conducted in accordance with the Principles of Assessment and the Rules of Evidence as set out above. After reviewing the evidence provided by the applicant in response to the initial audit report the respondent found 11 courses to be non-compliant with clause 1.8. This was later reduced to 10. Of those 10 courses, 3 related to a failure by the applicant to take necessary remedial action and reassess students. That has subsequently been done.
Of the remaining 7 courses, 2 fall within the Aviation School and 5 fall within the Technical Sciences School.
The Aviation School
In the course described as Certificate III in Aviation (Remote Pilot – Visual Line of Site) of which one unit is entitled “Operate and Manage Remote Piloted Aircraft Systems”. The non-compliance identified here concerned the dating of assessment workbooks. Ms Keller, the auditing expert for the respondent, observed that the applicant had not provided any evidence to confirm the date that the sampled learners had completed workbooks. The applicant admitted that the date was omitted due to an oversight and that it had now introduced a checklist to prevent errors of that nature recurring.
The next course concerns the Diploma of Aviation (Aviation Management). One defect identified by Ms Keller was that it was not apparent that a group assessment item ensured that each student within the group addressed certain performance evidence requirements. In accordance with professional recommendations the applicant updated its group activity and noted that the assessor’s guide provided that assessment was to be completed by individuals in the group setting. A project manager was allocated to ensure tasks were evenly distributed to group members. Ms Keller confirmed that if that process was implemented the subject would be compliant.
The Technical Sciences School
The course involved was known as Certificate III in Electro-technology Electrician and the particular unit was entitled “Verify Compliance and Functionality in Low-voltage General Electrical Installations”. There were two outstanding issues.
The first issue is that the assessment process did not comply with the Rules of Evidence (sufficiency and validity), or the Principles of Assessment (Reliability). This was a subject on which the applicant argued that there was room for a difference of opinion and therefore asked an independent expert to form a judgement on the issue.
The applicant obtained an opinion from Mr Maher. Mr Maher holds an Honours degree in Engineering, a Masters degree in Mechanical Engineering, a Masters degree of Engineering Management and is an ongoing candidate for a PhD. He also holds a Certificate IV in Training and Assessment. It was accepted that he is not qualified as an expert auditor of courses. The respondent submits that because he is not an auditor he is not qualified to express an opinion about compliance with Standard 1.8 which is set out above However he has doubtless a great deal of knowledge in the subject being considered.
The words used to explain “sufficiency, validity, reliability” in Table 1.8 are not complicated. I am satisfied that he can provide an opinion in relation to compliance with the particular standards which he has done. He expresses the opinion that the applicant is compliant and I accept that opinion.
The second issue relates to a finding of non-compliance with the rules of evidence in relation to the authenticity issue that requires that the assessor must be satisfied that the evidence presented for assessment is the learner’s own work. A particular student was given a take home assessment and the questions involved the student providing definitions and graphics. Those were in the learner’s guide to the subject and the student clearly copied and pasted from the learner’s guide into the assessment paper. The respondent submits the student should not have done that. The applicant has updated its assessment tool to make it clear that students should not copy or paraphrase a source without proper reference. This is an odd response to the issue raised but such is life.
The next course involved is the Certificate IV in Electro-technology – Systems Electrician. One unit of this course is entitled “Solve Problems in Electromagnetic Devices and Related Circuits”.
One issue related to students copying answers from the lecture notes in a take-home assignment. I have dealt with that above.
The second issue related to the currency rule of evidence. That requires that the assessor is assured that the assessment evidence demonstrates current competency. The final audit report notes that a questions checklist for one learner had been left un-dated. That was human error. The applicant asserts that the assessment was dated in other places, as indeed it was. It is hardly a significant matter. Human errors of this kind are bound to occur.
The third issue relates to a checklist for the assessor to record “how and where” the assessment was performed. The applicant points out that the document that is being criticised records that the assessment took place at “Seven Hills, New South Wales”. The respondent’s engineering workshop is it Seven Hills New South Wales. The applicant argues that the clear inference is that it took place at the workshop. Mr Noble, an expert called by the respondent says, “the assessment on its own, if I was to bring that page to this room now and provide it to you, you wouldn’t have any idea as to where the assessment was conducted”. I disagree. If I knew that the assessment was of an engineering subject and that the engineering workshop of the applicant was at Seven Hills New South Wales, I would conclude that that is where the assessment was conducted. Mr Noble also criticises the failure of assessors to provide detailed feedback to students.
Mr Maher, whom I accept, says it is acceptable not to provide a student who has an excellent outcome with feedback. However Mr Noble clarified the issue when he gave evidence saying that the problem was not that there was insufficient feedback but rather that there was an instruction to the assessor to record detailed notes and that this had not been done. This is hardly a matter of great significance when the assessor is satisfied that the student’s performance is of a high standard.
Another issue giving rise to concerns about academic integrity arose in relation to an examination in the course Advanced Diploma of Electrical-Engineering. One student submitted an assessment that clearly indicated that the exam paper had been handed out to him improperly because the document from which he copied and pasted contained actual instructions to the examiner about what information the examiner should hope to find in the answer. Unlike the other matters where students had copied and pasted from their course notes, this matter gives rise to a serious concern about the integrity of the person doing the assessment. It should have been followed up with the teacher immediately but that was not done. Ms Kee was criticised for not having attended to it earlier but she said that it was not apparent to her until raised in the Ms Owen’s Report. I accept that evidence but it is certainly a cause for significant concern and should never have occurred.
The notice given by the respondent to the applicant on 8 May 2019
On 8 May 2019 the respondent gave the applicant a notice under section 26 of the NVR act to produce the files for 70 different students in 5 courses. Approximately 10,000 pages of documents were produced and, on behalf of the respondent, Mr Wright had time to review approximately half of the pages provided.
He discovered that two students’ assessments were unmarked. The applicant disputes that by pointing out that there are one or more ticks on every page in the assessment although it is clear that there are not ticks on every answer. However, in a questions checklist by way of a summary each question is ticked. Furthermore Mr Maher has confirmed that the students’ answers were indeed satisfactory. There is really nothing in this point.
Mr Wright also identifies five assessments where the answers are marked as correct but he asserts that “the intent of the question has not been met”. He comes to this conclusion based on the answers of other students. Mr Wright did not have the assessors’ guide available at the time and I make no criticism of him for that. Mr Maher has examined the answers and determined that four out of the five students gave satisfactory answers. The applicant says that the fifth assessment had simply not been marked.
Mr Wright makes a further criticism that student cover sheets and declarations for assessments had not been completed correctly. The problem when identified was that the assessor had signed but not dated the cover sheet.
Feedback by Students
From the documentation available to me it appears that students were reasonably happy with the courses that they attended with this institution. There are however a number of complaints. They have not really been tested in the hearing but they are concerning. A number of students were clearly very dissatisfied with the treatment or education they received. When provided with a bundle of complaints in March 2019 Ms Kee to her credit convened a meeting of her heads of school with a view to dealing with the complaints. It is unnecessary to set out each complaint other than to say that she says that they have been dealt with and there is no evidence to the contrary.
One student, Ms Laura Harvey was appallingly treated. She gave evidence by telephone from the United Kingdom. Her evidence was challenged but I accept it entirely.
In November 2018 she wrote asking for a copy of the class timetable for her 2019 course. She was told that none had as yet been produced. On 15 January 2019 she emailed asking whether there was anything she needed to prepare for her orientation as she had previously been told that there would be things that she would need to bring. She thought that the orientation was going to be in February but was advised that she should attend an orientation on 17 January 2019, in two days’ time. That was the first time she had been told there was a change to a timetable. She had just started a new full-time job that week after moving to Brisbane from Melbourne and became confused by this change in timetable. She finally got hold of someone who told her that the course would start in February as planned. That confused her further because she had been told that there was no longer a February intake. On 4 February 2019 she arrived at the campus to find that no one was ready for her arrival and that her course was not starting on that day. No one could find her course tutor for her to talk to. She had travelled 35 km across the city to get to the campus. She had previously received an email stating that her course timetable would be on Thursdays and Fridays between 9am and 3pm starting on Thursday, 7 February 2019.
On 5 February 2019 she received an email stating that her course would start on 6 February 2019. That upset her because she had not told her employer that she would be absent on the following day. She emailed to find out why the timetable had been changed and after 5pm on 5 February 2019 she received a reply that the author of the email had confused her with someone else and that her course would indeed start on Thursday, 7 February 2019.
On Thursday 7 February 2019 she arrived at the college at 8.45am ready to start at 9am. She waited in the classroom but no one showed up until 10am. She asked how to log onto the computer and the teacher said, “Why haven’t you sorted that out for yourself?” On that day the class finished at 1pm rather than 3pm and on the following day the class hours were from 10am until 1pm.
On 14 February 2019 the teacher arrived at the class even later than usual and the class finished at 11am and the teacher advised that the Friday class was cancelled as the teacher was going on maternity leave.
On 21 February 2019 she went to the College at 9am expecting a new tutor to arrive. She sat waiting for an hour and a half before another student told her the class was cancelled for that day. She went to reception and was told the classes for both Thursday and Friday were cancelled. A phone call revealed that classes would now run on Monday and Tuesday. Later on that day she received an email asking if she had received an email about tomorrow’s class. She had not and was not included on the mailing list by the coordinator. She found out that the classes were not being run on Monday and Tuesday and instead were being run on Thursday and Friday starting at 5pm. Due to unavailability of public transport this meant that her partner had to come and collect her after each session of the College.
The classes were run by Mr Hafeez Niazi. He told her that he worked full-time for the National Australia Bank and was leading the sessions as a favour to the college. She says he did not prepare class notes or appear to be prepared for classes. He read notes from the board and commented that the notes were outdated. Between 7 February 2019 and 15 March 2019 she only received eight hours of genuine teaching. She raised many other matters of complaint.
She was completely dissatisfied and became disillusioned with Australia where she had hoped to settle, and returned to United Kingdom.
She represents the perfect example of precisely what the legislative scheme seeks to avoid. If there were many similar cases I would have no hesitation in deciding this matter against the applicant. However, I take into account that in the surveys conducted by the respondent at the time of the audit, 85% of students were either satisfied or very satisfied and only 5% were dissatisfied or very dissatisfied. Even 5% is far too high.
The respondent is charged with a difficult task. It must protect the reputation of the education sector and in doing that abide by and apply a set of Standards. It is not just a case of ensuring that one provider complies with the Standards across one subject. It must ensure that thousands of providers comply with Standards across a great many subjects. This task is made more difficult because there is a need to ensure a consistency of standards across a range of different providers. The aim is to ensure that the certificate from provider A in respect of subject X is of the same level as the certificate from provider B in respect of subject X. That requires a rigorous application of the Standards by the respondent. The respondent relies on the providers to self-regulate. It cannot possibly do otherwise. What must be a matter of concern, and is of concern in this matter, is a belief that a provider is responsible for systemic non-compliance. Perhaps its greatest concern is that it believes that Ms Kee does not know what she doesn’t know. It refers to her as having no insight into the deficiencies in her system and points to the fact that she has not engaged an expert to assist her in developing more compliant systems and practices.
I am satisfied that Ms Kee is an intelligent woman and that she endeavours to grapple with a complex system. Her business has grown exponentially over recent years. It may well be that in some areas she is not aware of what she does not know but it is also clear that she is prepared to obtain expert assistance. She must do so.
I am satisfied that at the time of the initial audit and of the final audit there were significant failures to comply with the standards. I take into account the fact that on previous audits the applicant had essentially been found to be compliant. The applicant had a very rapid expansion of its business. It probably expanded beyond its ability to ensure that its compliance with Standards continued to a satisfactory level. I am however satisfied that Ms Kee has tried very hard to rectify issues that have been identified, and taken steps to ensure compliance for the future.
I will not have regard to the fact that my decision in this matter will have a substantial financial impact on the applicant. My concern relates to the maintenance of integrity in the system, maintenance of standards and maintenance of reputation. I take into account the extent of the non-compliance with the Standards, and the steps taken to remedy the failures identified. Standard 2 requires that the organisation systematically monitors its training and assessment strategies and practices and systematically evaluates and uses the outcomes of the evaluation is to improve its training and assessment strategies and practices. There seems to have been a degree of laxity in compliance with some Standards. Ms Kee has taken steps to ensure future compliance. In the area of marketing and recruitment the applicant has had its marketing department undertake training to improve services. It has put in place processes to ensure that materials are regularly reviewed and obsolete materials are not unintentionally used. In the field of training and assessment the applicant has conducted a review of its process and adopted a checklist to ensure that reviews are comprehensive. In short, it has, as a result of the audit process and of these proceedings, undertaken substantial work to ensure compliance with the Standards.
I respectfully agree with the statement by Prof Braithwaite in her 2018 review of ASQA’s legislation when she said:[29]
As a regulator [ASQA’s] role is to motivate RTOs to reflect on their performance, what they might do better and how they might go about improving their performance. Recommendations in this review favour continuous improvement over mandating quality standards that all RTOs must achieve. Ultimately, the way ASQA should regulate for quality (as opposed to sufficiency) is to look at how well RTOs go about setting their own higher standards, checking if such standards are met, motivating through praise and encouragement and support when they have achieved improvement, and advising on options when they have not.
[29] Professor V Braithwaite, All Eyes on Quality: Review of the National Vocational Education and Training Regulator Act 2011 (Government Report, January 2018), page 8.
I am not satisfied that cancellation of registration is the correct or preferable decision. As submitted by the respondent, and undoubtedly correct, my concern is to ensure the maintenance of high and consistent standards and to protect the reputation of the nation as a provider of first class education to Australian and overseas students. The matters raised by the respondent do not involve dishonesty or any kind of fraudulent conduct, not to say that that is the relevant test. It is not. The applicant has shown insight and has shown itself ready and willing to correct failings identified and to implement a system to ensure that its compliance is improved by the employment of more staff to monitor compliance. The applicant should be given an opportunity to perform at a higher standard than it has to date. To ensure that happens, its registration should be renewed for a limited period. Both parties have suggested some conditions that might be imposed on registration. I take those into account. Furthermore, its application to change its CRICOS registration to extend to further courses should be refused, at least until after its next audit. It has not performed at a sufficiently high standard to justify allowing it to offer more courses.
DECISION
The Tribunal sets aside the decision to cancel the applicant’s registration under section 39 of NVR Act and directs that the renewal of registration for a period of three years be subject to conditions set out hereunder.
The Tribunal sets aside the decision to cancel the applicant’s registration for all courses at all locations under section 83(3) and 93(4) of the ESOS Act and directs that the renewal of registration for a period of three years be subject to conditions set out hereunder.
The Tribunal affirms the decision to refuse the applicant’s application to change its CRICOS registration.
Conditions
Condition 1: PRISMS Compliance[30]
[30] Pursuant to section 83(3)(a) of the ESOS Act.
(a)By 30 June and 31 December of each year during its registration under the ESOS Act, Brighton must cause all Brighton personnel with access to Provider Registration and International Student Management System (PRISMS) to receive external training in relation to Brighton's obligations under the Education Services for Overseas Students Act 2000 (ESOS Act) and National Code of Practice for Providers of Education and Training to Overseas Students 2018 (National Code) (External Training Requirement).
(b)By 28 February of each year during its registration under ESOS Act, Brighton must produce a report (PRISMS Compliance Report), capable of being produced to ASQA upon request after that date:
(i)providing evidence that the External Training Requirement has been met;
(ii)providing evidence that Brighton has complied with its obligations to report information in PRISMS under the ESOS Act and National Code;
(iii)providing evidence that the PRISMS Compliance Report has been reviewed by an independent person who is suitably experienced in the use of PRISMS and compliance with reporting obligations in PRISMS under the ESOS Act and National Code.
Condition 2: Review of Assessment System to reduce occurrence of alleged plagiarism[31]
[31] Pursuant to section 29(1) of the NVR Act.
(a)By 31 October 2019, Brighton is to approve an Academic Misconduct Policy that applies to all of its students (Academic Misconduct Policy).
(b)By 31 October 2019, Brighton must cause an independent review to be undertaken of a sample of its assessments across all courses with active enrolments, requesting any recommended changes to those assessments to reduce the risk of the occurrence of alleged academic misconduct (including plagiarism) under the Academic Misconduct Policy (Assessment Design Review).
(c)The Assessment Design Review must be undertaken by an independent person who is suitably experienced in the design of assessment to reduce instances of academic misconduct.
(d)By 28 February 2020, Brighton must produce a report demonstrating that it has implemented any recommendations from the Assessment Design Review across its entire assessment system, capable of being produced to ASQA immediately upon request after that date.
Condition 3: Independent Validation of Assessment System[32]
[32] Pursuant to section 29(1) of the NVR Act.
(a)By 30 June 2020, Brighton must cause to be produced an independent validation of its assessment system, tools, processes and outcomes for each of its courses with active enrolments, capable of being produced to ASQA immediately upon request after that date.
(b)The independent validation must be undertaken by independent person/s who have vocational currency in the training product being validated and the training and assessment qualification or assessor skill set at least to the level being validated.
I certify that the preceding 110 (one hundred and ten) paragraphs are a true copy of the reasons for the decision herein of Deputy President Ian Hanger AM QC
..................[sgd].........................................
Associate
Dated: 19 September 2019
Date of hearing: 26, 27 and 28 June 2019 and 2, 3, 4 and 5 of July 2019 Applicant’s Senior Counsel: Mr Scott McLeod
Mr Andrew CroweApplicant’s Junior Counsel: Mr Angus O’Brien Solicitors for the Applicant: Minter Ellison Respondent’s Counsel: Ms Sarah Wright
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