Business Institute of Australia Pty Ltd and Australian Skills Quality Authority

The parties to this matter were Business Institute of Australia Pty Ltd (BIA) and the Australian Skills Quality Authority (ASQA). BIA sought a stay of ASQA's decision to impose conditions on its registration as a Registered Training Organisation (RTO) and an ESOS provider. The dispute concerned the nature and effect of these imposed conditions, particularly in relation to student attendance and progress requirements. The matter was heard by the Hon. Dennis Cowdroy OAM QC, Deputy President.

The primary legal issue before the court was whether to grant BIA's application for a stay of ASQA's decision. This involved considering whether BIA had demonstrated a sufficient likelihood of irreparable harm if the stay was not granted, and whether the balance of convenience favoured granting the stay. The court was also required to consider the interpretation and application of the relevant standards under the 2018 Code, specifically clauses 8.9, 8.10, 8.11, and 8.12, concerning the assessment of course progress and the monitoring of overseas student attendance.

The court considered submissions that the imposition of conditions could lead to students leaving BIA, potentially breaching their visa conditions, and causing prejudice to contractors and staff due to damage to BIA's business. It was noted that there was no attack on the quality of BIA's courses or its monitoring processes. The applicants highlighted that the 2018 Code, unlike the previous 2017 Code, did not stipulate minimum attendance requirements but rather focused on documented policies and processes for assessing course progress and monitoring attendance if required by an ESOS agency. The court acknowledged that if an ESOS agency requires monitoring, clause 8.11 sets a minimum attendance of 80% of scheduled contact hours, and clause 8.12 outlines the provider's obligations in monitoring and recording attendance, including intervention strategies.

The court granted the stay of the decision.