G Plus G Global Trading Pty Ltd and Australian Skills Quality Authority
[2013] AATA 698
[2013] AATA 698
Division GENERAL ADMINISTRATIVE DIVISION File Numbers
2012/4478; 2012/4481; 2012/4482; 2012/4483; 2012/4484; 2012/5253
Re
G Plus G Global Trading Pty Ltd
APPLICANT
And
Australian Skills Quality Authority
RESPONDENT
DECISION
Tribunal Egon Fice, Senior Member
Date 27 September 2013 Place Melbourne 2012/4483
The Tribunal sets aside the decision made by ASQA on 3 October 2012 and in substitution decides that VICAT's registration as an RTO under the NVR Act should be renewed.
2012/4484
The Tribunal sets aside the decision made by ASQA on 3 October 2012 and in substitution decides that VICAT's registration as an Approved Provider under the ESOS Act should be renewed.
2012/5253
The Tribunal sets aside the decision made by ASQA on 13 November 2012 and in substitution decides that all of VICAT's scope of registration under the NVR Act should not be suspended.
2012/4482
The Tribunal remits this matter to ASQA to reconsider its decision made on
3 October 2012 to reject VICAT's application to add a number of courses to its scope of registration under the NVR Act.2012/4478
The Tribunal remits this matter to ASQA to reconsider its decision made on
3 October 2012 to reject VICAT's application to add a number of courses to its registration for provision to overseas students under the ESOS Act.2012/4481
The Tribunal remits this matter to ASQA to reconsider its decision made on
3 October 2012 to reject VICAT's application under the ESOS Act to increase the number of overseas students enrolled at any one time from 450 to 800..........[sgd Egon Fice]...............................................................
Egon Fice, Senior Member
VOCATIONAL EDUCATION AND TRAINING – non-compliance – renewal of registration – VET Quality Framework – National Code Standards – NVR Standards
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Education Services for Overseas Students Act 2000 (Cth) ss 5, 7A, 9AB, 9AC, 9AG, 9AF, 14A, 130, 131, 170, 176
Higher Education Support Act 2003 (Cth)
National Vocational Education and Training Regulator Act 2011 (Cth) ss 3, 16, 17, 21, 22, 23, 24, 25, 26, 27, 28, 29, 31, 33, 35, 36, 37, 38, 185, 199, 203
Cases
Australian Academy of Management & Science Pty Ltd and Australian Skills Quality Authority [2013] AATA 530
George v Rockett (1990) 170 CLR 104
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Secondary Materials
Education Services for Overseas Students Regulations 2001
National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007
Phillips J.L, How to Think About Statistics (6th ed, Henry Holt and Company LLC, 2002)
Select Legislative Instrument 2011 No. 92
Shorter Oxford English Dictionary (3rd ed, 1983)
Standards for NVR Registered Training Organisations 2012
REASONS FOR DECISION
Egon Fice, Senior Member
27 September 2013
G Plus G Global Trading Pty Ltd trades under the registered business name Victorian Institute of Culinary Arts and Technology (VICAT).
VICAT is a Registered Training Organisation (RTO) having been registered under Part 2 Division 1 of the National Vocational Education and Training Regulator Act 2011 (the NVR Act). VICAT is also an Approved Provider (AP) having been registered under Part 2 Division 3 of the Education Services for Overseas Students Act 2000 (ESOS Act).
The Australian Skills Quality Authority (ASQA) is the National Vocational Education and Training Regulator (National VET Regulator) established under Part 7 Division 1 of the NVR Act (see Select Legislative Instrument 2011 No. 92). ASQA is also a Designated Authority pursuant to s. 7A of the ESOS Act.
On 5 September 2011 VICAT lodged applications with ASQA seeking renewal of its registration as an RTO and an AP. VICAT also lodged applications seeking to add courses for its overseas students and VET accredited courses; and it applied to increase the number of overseas students which it could enrol in its courses from 450 to 800.
After audits undertaken in February and June 2012, ASQA made the following decisions on 3 October 2012:
(a)it rejected VICAT's application for renewal of its registration as an RTO under the NVR Act (matter number 2012/4483);
(b)it rejected VICAT's application for renewal as an AP under the ESOS Act (matter number 2012/4484);
(c)it rejected VICAT's application made under s. 33 of the NVR Act to add a number of courses to its scope of registration (matter number 2012/4482);
(d)it rejected VICAT's application made under s. 9AG of the ESOS Act to add a number of courses to its registration for provision to overseas students (matter number 2012/4478); and
(e)it rejected VICAT's application made under s. 9AF of the ESOS Act to increase the number of overseas students that it may have enrolled at any one time from 450 to 800 (matter number 2012/4481).
Furthermore, on 13 November 2012 ASQA notified VICAT that it had decided to suspend all of its scope of registration under s. 38 (1) of the NVR Act with the restriction that during the period of suspension, it not enrol any student in a VET course or part of a VET course (the suspension decision). That decision had effect from 30 November 2012 (matter number 2012/5253). The expression scope of registration is defined in s. 3 of the NVR Act in the following way:
scope of registration, in relation to an NVR registered training organisation, means the things that an organisation is registered to do. It will allow an NVR registered training organisation to:
(a)both:
(i) provide training and assessments resulting in the issue of VET qualifications or VET statements of attainment by the organisation; and
(ii) provide assessments resulting in the issue of VET qualifications or VET statements of attainment by the organisation; or
(b)provide assessments resulting in the issue of VET qualifications or VET statements of attainment by the organisation.
The reasons for making the suspension decision are the same reasons particularised in ASQA's letter of 3 October 2012 notifying VICAT of rejection of its application for renewal of registration under the NVR Act.
Each of the decisions to which I have referred above which were made under the NVR Act are reviewable decisions as that expression is defined at s. 199 of the NVR Act. Furthermore, because those decisions were made by the Commissioners rather than by a person or other member of the staff of the National VET Regulator, applications for review of those decisions may be made directly to this Tribunal pursuant to s. 203 (2) of the NVR Act. The decisions made under the ESOS Act are decisions reviewable by this Tribunal for the reason that they fall under s. 176 (1) of the ESOS Act. An application may be made to this Tribunal under s. 176 (1) of the ESOS Act.
While VICAT has sought review of each of the decisions to which I have referred to above, I should first examine whether the decisions to refuse renewal of registration under the NVR Act and the ESOS Act were the correct or preferable decisions. The outcome of that determination will direct the way in which I should deal with the remaining applications for review.
RENEWAL OF REGISTRATION UNDER THE NVR ACT
Applications for registration, including applications for renewal of registration, as an RTO may be made by application to the National VET Regulator (ASQA) (s. 16 of the NVR Act). Registration is granted for a fixed period, not being more than 5 years (s. 17 (5) of the NVR Act).
Section 31 deals with the renewal of registration. It provides:
31 Renewal of registration
(1)The National VET Regulator may renew an NVR registered training organisation's registration under section 17 if the organisation makes an application for renewal:
(a)at least 90 days before the day the organisation's registration expires; or
(b)within such shorter period as the Regulator allows.
(2)An application must be accompanied by the application fee determined by the Minister, by legislative instrument, under section 232.
(3)An NVR registered training organisation's registration is taken to continue until the organisation's application is decided.
(4)An NVR registered training organisation may apply for renewal of registration during a period when all or part of its scope of registration is suspended.
There are no compliance requirements for the grant of renewal of registration expressed in the NVR Act. Nevertheless, and there was no dispute about this, the reference in s. 31 (1) to s. 17 appears to indicate that the requirements in that section must be met for renewal. Relevantly, s. 17 provides:
17 Registration
Grant of application for registration
(1)The National VET Regulator may grant an application for registration.
(2)In deciding whether to grant an application, the National VET Regulator must consider whether the applicant complies with:
(a)the VET Quality Framework; and
(b)the applicable conditions of registration set out in Subdivision B of this Division.
(3)When considering the application, the National VET Regulator may conduct an audit of any matter relating to the application.
(4)The National VET Regulator may charge a registration assessment fee for considering the application.
Period of registration
(5)If the National VET Regulator grants an application, the Regulator must also determine the period to which the applicant is registered. The period must not be more than 5 years.
Conditions of registration
(6)If the National VET Regulator considers it appropriate to do so, the Regulator may impose one or more conditions under subsection 29(1) to which an organisation's registration is subject.
The expression VET Quality Framework is defined in s. 3 of the NVR Act as follows:
VET Quality Framework means the following:
(a)the Standards for NVR Registered Training Organisation;
(b)the Australian Qualifications Framework;
(c)the Fit and Proper Person Requirements;
(d)the Financial Viability Risk Assessment Requirements;
(e)the Data Provision Requirements.
The applicable conditions referred to in s. 17 (2)(b) of the NVR Act are found at ss 21 – 29 of the NVR Act. They involve (despite some repetition):
(a)compliance with the VET Quality Framework (s. 22);
(b)satisfying the Fit and Proper Person Requirements (s. 23);
(c)satisfying the Financial Viability Risk Assessment Requirements (s. 24);
(d)notifying the National VET Regulator of material changes which would significantly affect the organisation's ability to comply with the VET Quality Framework; or the details of the executive officer of the organisation change; or other substantial changes to the operations of the organisation (s. 25);
(e)providing information as the Regulator (ASQA) requests (s. 26);
(f)cooperating with the National VET Regulator as far as it is necessary to facilitate the Regulator's performance of its functions (s. 27);
(g)complying with directions given by the National VET Regulator (s. 28); and
(h)any other conditions imposed by the National VET Regulator (s. 29).
I should, at this point, mention what appears to be an internal inconsistency in the NVR Act. While s. 17 (2), which deals with an application for registration, requires ASQA simply to consider whether the applicant complies with the VET Quality Framework, all of the conditions of registration set out in Subdivision B state that there must be compliance. Furthermore, failure to comply with a condition of registration is said to be a contravention of a civil penalty provision. It seems to me that Subdivision B as drafted was only intended to deal with organisations which have received registration despite the fact that s. 17 (2)(b) requires at least that consideration be given whether an applicant meets those conditions. In my respectful opinion, this legislation needs serious reconsideration.
The Standards for NVR Registered Training Organisations 2012 are set out in a legislative instrument made pursuant to s. 185 of the NVR Act by the then Minister, Mr Chris Evans, on 29 January 2013. In essence, that legislative instrument sets out the essential standards for initial registration (SNR 4 – SNR 14) and the essential standards for continuing registration (SNR 15 – SNR 25).
The Australian Qualifications Framework is defined in s. 3 of the NVR Act as having the same meaning as in the Higher Education Support Act 2003.
RENEWAL OF REGISTRATION UNDER THE ESOS ACT
There are similar provisions in the ESOS Act. Section 9AB of the ESOS Act deals with the registration of APs and the renewal of registrations. In so far as it is relevant, s. 9AB provides:
Registering approved providers
(1)The Secretary must register an approved provider if:
…
(f)the Secretary has no reason to believe that the provider:
(i) is not complying, or will not comply, with this Act or the national code; or
(ii) does not have the principal purpose of providing education; or
(iii) does not have the clearly demonstrated capacity to provide education of a satisfactory standard; or
(iv) is unlikely to be able to provide education of a satisfactory standard; and
…
(5)To avoid doubt, the Secretary registers a provider under this section if the Secretary renews the provider's registration.
The reference to the national code in s. 9AB (1)(f)(i) is a reference to the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007 (the National Code). Section 33 of the ESOS Act provides that the Minister may make a national code by legislative instrument. APs and courses are registered on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS). Part C of the National Code provides that approval can only be given where the provider seeking to be registered has been found to comply with all the requirements for registration under the relevant state or territory legislation and ss. 9 and 9A of the ESOS Act. It includes complying with the National Code.
Part D of the National Code sets out the standards for registered providers. Those standards are numbered from 1 to 15 and, for the purposes of this matter, I have given them the prefix NC.
Section 9AC of the ESOS Act provides that an AP may be registered for more than two years but no more than five years. Also, if an AP's registration is due to expire before the provider has finished providing a course for which it is registered, the provider is taken to be registered to provide the course until the provider has finished providing the course to the students who were enrolled in the course before the registration was due to expire.
ASQA AUDITS
ASQA conducted audits of VICAT's operations on 22 and 23 February 2012 ostensibly under the ESOS Act and the NVR Act in order to assess compliance with the requirements of the National Code and the NVR Standards. ASQA recorded VICAT to be non-compliant in respect of the following:
1ESOS Act
· s. 19 – giving information about accepted students
· s. 21A – obligations relating to the agents of registered providers
2National Code – C Registration on CRICOS
· 8 – work-based training
3National Code – Standards for Registered Providers
· NC 1 – marketing information and practices
· NC 2 – student engagement for enrolment
· NC 3 – formalisation of enrolment
· NC 4 – education agents
· NC 6 – student support services
· NC 7 – transfer between registered providers
· NC 8 – complaints and appeals
· NC 10 – monitoring course progress
· NC 12 – course credit
· NC 13 – deferring, suspending or cancelling the student's enrolment
· NC 14 – staff capability, educational resources and premises
· NC 15 – changes to registered providers' ownership or management
4NVR Act – Data Provision Requirements
· DPR 4 – student records management system
· DPR 6 – collection of data against quality indicators
· DPR 7 – annual reports
5Australian Qualifications Framework
· not having in place a policy or mechanism to: authenticate and verify documentation; reduce fraudulent reproduction and use of certification documents issued by the Provider; replace certification documentation; and revoke certification documentation issued.
6NVR Standards (referred to as SNRs) – Part 3 Essential standards for continuing registration
· SNR 15.1 – collects, analyses, and acts on relevant data for continuous improvement of training and assessment
· SNR 15.2 – strategies for training and assessment meeting the requirements of the relevant Training Package or VET accredited course developed through effective consultation with industry
· SNR 15.3 – staff, facilities, equipment and training, and assessment materials used by the NVR registered training organisation are consistent with the requirements of the training package or VET accredited course and the NVR registered training organisation's own training and assessment strategies developed through effective consultation with industry
· SNR 15.4 – training and assessment delivered by trainers and assessors who have the necessary training and assessment competencies as determined by the National Skills Standards Council; have the relevant vocational competencies at least to the level being delivered or assessed; can demonstrate current industry skills directly relevant to the training/assessment being undertaken; and continue to develop vocational education and training knowledge and skills as well as industry currency and trainer/assessor competence.
· SNR 15.5 – assessment including recognition of prior learning (RPL)
· SNR 16.1 – the training organisation established the needs of clients, and delivered services to meet those needs
· SNR 16.2 – continuously improving client services by collecting, analysing and acting on relevant data
· SNR 16.3 – inform clients, before enrolment or entry into an agreement, about the training, assessment and support services to be provided, and about their rights and obligations
· SNR 16.4 – employers and other parties who contribute to each learner's training and assessment are engaged in the development, delivery and monitoring of training and assessment
· SNR 16.5 – learners receive training, assessment and support services that meet their individual needs
· SNR 16.6 – learners have timely access to current and accurate records of their participation and progress
· SNR 16.7 – the training organisation provides appropriate mechanisms and services for learners to have complaints and appeals addressed efficiently and effectively
· SNR 17.1 – the training organisation's management of its operations ensures clients receive the services detailed in their agreement with the organisation
· SNR 17.2 – the training organisation uses a systematic and continuous improvement approach to the management of operations
· SNR 17.4 – the training organisation managers records to ensure their accuracy and integrity
· SNR 18.1 – the training organisation's Chief Executive must ensure that the organisation complies with the VET Quality Framework
· SNR 18.2 the training organisation must explicitly demonstrate how it ensures the decision making of senior management is informed by the experiences of its trainers and assessors
· SNR 19.1 – the training organisation must co-operate with the National VET Regulator (ASQA)
· SNR 20.1 – the training organisation must comply with relevant Commonwealth, State or Territory legislation and regulatory requirements relevant to its operations and its scope of registration
· SNR 20.2 – the training organisation must ensure that staff and clients are fully informed of legislative and regulatory requirements that affect their duties or participation in vocational education and training
· SNR 21.1 – the training organisation must hold public liability insurance throughout its registration period
· SNR 22.2 training organisation must provide fee information to each client
· SNR 23.2 – training organisation must recognise Australian Quality Framework VET qualifications and the VET statements of attainment issued by any other RTO
· SNR 23.3 – the training organisation must retain client records of attainment of units of competency and qualifications for a period of 30 years
· SNR 23.4 the training organisation must provide returns of its client records of attainment of units of competency and VET qualifications to the National VET Regulator (ASQA) on a regular basis
· SNR 24.1 – the training organisation must ensure its marketing and advertising of Australian Quality Framework and VET qualifications to prospective clients is ethical, accurate and consistent with its scope of registration
· SNR 24.2 – the training organisation must use the NRT (Nationally Recognised Training) logo only in accordance with its conditions of use
· SNR 25.1 – the training organisation must manage the transition from the superseded Training Packages within 12 months of their publication on the National Register so that it delivers only currently endorsed Training Packages
On 5 and 6 June 2012 ASQA conducted a follow-up audit of VICAT for the purpose of reviewing rectification following the first audit. On 22 June 2012 ASQA provided VICAT with two audit reports, one in respect of compliance under the ESOS Act and the second dealing with compliance under the NVR Act. ASQA noted that substantial non-compliance remained under both statutes. National Code Standards 1, 4, 12 and 15 had apparently been rectified. Australian Qualifications Framework was now regarded as compliant. NVR Standards 19.1, 21.1, 22.2, 23.2, 23.4, 24.1 and 24.2 were also compliant. Although all of the items previously identified under NVR 22 appear to have been rectified, the audit summary continued to indicate that this standard was non-compliant. I do not understand why that was the case. It appears to be an error.
I should also point out that the documents provided by ASQA pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act) contain duplicated audit reports (CRICOS audit report at page 528 is duplicated at page 572; VET Quality Framework audit report at page 545 is duplicated at page 589). Also, although an audit report and auditor notes were provided in respect of the 22 and 23 February 2012 CRICOS audit, only the auditor notes were provided in respect of the VET Quality Framework audit on those dates. I also had in evidence a further eight arch lever folders of documents which were simply described as the applicant's documents. Those documents were apparently provided to ASQA by the applicant and copies made for the Tribunal. There was no index to those arch lever folders. The applicant also lodged four bound folders of documents. Most of those documents were simply irrelevant for the purposes of this hearing. Overall, there were in excess of 7000 pages of documents before me. I note that Senior Member PW Taylor SC in Australian Academy of Management & Science Pty Ltd and Australian Skills Quality Authority [2013] AATA 530 (30 July 2013) had similar difficulties with the documents provided by ASQA. I share Senior Member Taylor's concerns. Under s. 37 of the AAT Act, a decision-maker is required to lodge with the Tribunal documents in its possession or control which are relevant to the review of the decision by the Tribunal. Most of the documents lodged by ASQA were not relevant to the matters in dispute.
While on this topic, I should also point out that rather than providing a statement of facts and contentions as is required in the Tribunal, ASQA lodged what would be more accurately described as a pleading. It was simply a response to the Applicant's statement of facts and contentions couched in the form of a pleading. For example, responses such as ASQA agrees and ASQA does not agree are unhelpful. Furthermore, such statements may lead an applicant to believe it bears an onus of proof. It plainly does not. A proper statement of facts and contentions is not only required, it can be of significant assistance to the Tribunal.
By the time this matter came on for hearing, further substantial work had been conducted by VICAT in amending its documents which were then regarded by ASQA as being compliant. This continued throughout the course of the hearing. That resulted in a non-compliance report prepared by Mr Leslie Comley, a Principal Compliance Auditor with ASQA, being substantially amended on several occasions. It also resulted in much of Mr Comley's oral evidence becoming irrelevant. With respect to both parties, the conduct of a hearing over a period of five days in this fashion is highly inefficient. I have more to say about this below.
THE CLAIMED OUTSTANDING NON-COMPLIANCE ISSUES
In his closing submissions, Mr P Cribb, who appeared on behalf of ASQA, said:
This matter and other matters like it arise because decisions are made based on non-compliance with the relevant standards and in many matters the situation is resolved when, after the first case conference and the Tribunal have been filed by the respondent, the applicant provides material which the respondent assesses and in many cases all our concerns have been satisfactorily addressed.
Mr Cribb went on to say that in some ASQA matters, a few items remained outstanding following an audit but, after what he described as a few rounds of the provision of supplementary material by the applicant, outstanding issues were all resolved. However, he said this was not such a case. Mr Cribb pointed out that after receiving Mr Comley's report of 13 June 2013, further material was provided by VICAT on 1, 5 and 8 July 2013. However, despite the provision of additional material, Mr Comley continued to have concerns regarding compliance and provided an amended non-compliance report which was lodged with the Tribunal on 11 July 2013. That non-compliance report referred to failures by VICAT to comply with SNR 15.1; SNR 15.2; SNR 15.3; SNR 15.4; SNR 15.5; SNR 16.1; SNR 16.2; SNR 16.5; SNR 16.6; SNR 17.2; SNR 17.4; SNR 18.1; SNR 20.1; SNR 25; NC 7.2; NC 7.6; NC 10.1; NC 10.5; NC 13.1; NC 13.4; NC 14.1 and NC 14.2.
Despite this relatively lengthy list of non-compliant matters, Mr Cribb explained that he had an edited version or what he described as a culled version of Mr Comley's complaints. He said he considered these to be the obvious serious matters which Mr Comley determined were deficiencies and which had not been rectified (transcript page 7). Essentially, they concerned non-compliance with NC 14.2 and in particular, the adequacy of learning resources.
National Standard 14 generally deals with staff capability, educational resources and premises. Specifically, NC 14.2 provides:
14.2 The registered provider must have adequate education resources, including facilities, equipment, learning and library resources and premises as required by the quality assurance framework applying to the course. Where the course provided by the registered provider is not subject to an appropriate quality assurance framework, the registered provider must ensure it has adequate education resources, including facilities, equipment, learning and library resources, and premises, including ownership or tenancy arrangements for the premises, as are needed to deliver the registered course to the students enrolled with the registered provider.
In its response to the audit findings made in June 2012 VICAT asserted that the audit report provided insufficient information to enable it to provide a detailed response regarding NC 14.2. That was a reference to the deficiencies identified in unit number SITXGLC001A – Develop and update legal knowledge required for business compliance. However, the documents referred to by VICAT in its response were in respect of three different units of competency: SITXCCS003A – Manage quality customer service; SITXCCS002A – Provide quality customer service; and BSBCUS501C – Manage quality customer service.
Mr Comley examined the learning resources (documents) related to unit SITXCCS003A and noted that in Case Study 1, the second question which asked: How can an organisation identify, translate and meet customer needs, wants and expectations (T documents page 4724), was not identical to the question posed in the Assessor Guide in respect of Case Study 1 which stated: Relate your comments directly to the processes your organisation employs to identify, translate and meet customer needs, wants and expectations (T documents page 4755). Mr Comley also pointed out that in the last paragraph on page 4756 of the T documents, the first word was Aft but clearly was intended to be All.
With respect to Mr Comley, the slightly different expression used in the Assessor Guide appears to be a direction to the assessor regarding that question. There is no material difference in the question. Furthermore, the typographical error in the last paragraph on page 4756 is a minor matter. In any event, Ms Amita Gill who described herself as the Chief Executive Officer of VICAT, in the course of her oral evidence tendered a folder of documents which was admitted into evidence, containing amended documentation. While the questions remained in the same format, added to the Assessor Instructions under each question was a sample answer.
Mr T Mitchell of counsel, who appeared on behalf of VICAT, submitted that although there was a slight difference in the expression of the questioning of the student, there was no significant difference between what was on the case study document and the assessor guide. Respectfully, I agree with that submission.
Mr Cribb then pointed out that the Assessor Guide document referred to an assessment checklist being amongst the materials. The same problem appeared on the Assessor Guide to Case Study 2. He submitted that deficiency could potentially lead to confusion. He suggested that assessors were assumed to be super confident and to work their way through that deficiency.
Mr Mitchell submitted that the applicant, responding to the opportunity for continuous improvement, has removed the word checklist from the Assessor Guide relating to both Case Study 1 and 2. I have examined those documents and Mr Mitchell's submission is plainly correct.
Mr Cribb next referred to the coversheet for a test which contained the instruction: Compulsory to attempt all questions to achieve Competency (C) (T documents page 4727). He said that the statement was something of a nonsense because it implied that if you attempt all questions, you can achieve competency. With respect to Mr Cribb, I agree with Mr Mitchell where he said he was not sure that was what the phrase meant. Literally, it simply means that to achieve competency, one has to attempt every question. It does not mean that if you attempt every question you will achieve competency. In any event, in the amended documents lodged by VICAT in the course of the hearing, that phrase had been completely deleted. Furthermore, instruction number 5 on that page stated: To be deemed competent in this assessment you will have to answer all questions correctly. Mr Cribb did say that he considered this to be a bit of a minor point.
The next matter addressed by Mr Cribb was in respect of the unit SITXCCS002A – Provide quality customer service (T documents page 4637). That unit includes Assignment 1 which is a role play (T documents page 4689). The student is required to select one of two scenarios. The scenarios refer to the role which is to be played by the student being assessed. Both scenarios require the student being assessed to play the role of a wholesaler attending to a customer who has a complaint. Quite plainly, as Mr Cribb said, there were participants in the role play other than the student being assessed. Mr Cribb's criticism was that there was no evidence that the participants in the role play other than the student being assessed had been provided with instructions regarding their respective roles.
In the course of his cross-examination, Mr Comley said he was of the view that there needed to be fixed scripts for all participants. However, Mr Cribb's submission was that there did not need to be a fixed script but rather some instructions to the participants other than the student being examined, such as playing their part in a broken English accent and trying to put candidate off.
In my respectful opinion, overly scripted role-plays are far less likely to be as effective as unscripted ones. Logically, there should be room for spontaneity and ingenuity. Furthermore, the very simple scenarios set out in the role play assignment leave little room for doubt on the part of participants other than the student being assessed as to what is expected from their role. All of the students participating in the role play are given the document describing the scenarios. I also disagree with Mr Cribb's submission that all of the students receiving the role-play scenarios will think that they are to play the role of the wholesaler. I have no doubt that the assessor would explain which student is to take up which role. I also expect that students participating in the role-play will have no doubt what is required of them without being given written instructions regarding the role.
The next issue raised by Mr Cribb related to the Learning and Assessment Strategy for the unit BSB 51107 – Diploma of Management (T documents page 4769). Under the heading Delivery & Assessment Validation Process (T documents page 4778), at the first point, it is stated: Course Coordinator (or delegate) meets with representatives from enterprise clients on a regular basis (at least annually) to check the performance standards required in the program are consistent with industry practice. In the course of his cross-examination Mr Comley explained that the reference to enterprise clients, using as an example McDonald's Restaurants, meant McDonald's pays for the training for their employees. Mr Cribb said that Mr Comley's point was that VICAT only provides this course to international students and therefore the customer or the client is the student rather than an employer. Mr Mitchell asked if the word client were removed, whether that would satisfy the complaint, Mr Cribb said he accepted that. Once again, Mr Cribb said this was not a huge issue.
Mr Cribb referred to the unit described as BSBHRM506A Manage Recruitment Selection and Induction Processes, and in particular the assessment cover sheet (T documents page 4975). The assessment cover sheet describes four forms of assessment, which, according to Mr Comley, contained an inappropriate focus on implementing the processes rather than managing processes. Mr Mitchell directed my attention to the first page of the documents relating to this unit which is in fact described as: Manage recruitment selection and induction processes. Under the heading Application of the Unit it is stated:
This unit applies to human resources managers or human resources personnel who take responsibility for managing all aspects of selecting new staff and orientating those staff to their new positions. It is not assumed that the manager will be directly involved in the selection processes themselves, although this may well be the case.
Mr Mitchell said that the statement dealing with the application of the unit clearly describes the possibility that the manager will be directly involved in the selection processes. In fact, under the section of this unit dealing with Elements and Performance Criteria, that seems to be clearly established. Furthermore, as Mr Mitchell submitted, the mapping document referring to this unit supports the fact that it is concerned with managing the process.
Mr Cribb also pointed out that there was a more specific unit referred to as BSBHRM 402A which has the title Recruit, select and induct staff. In response to that submission, Mr Mitchell said that it did not matter that there was another unit which may have had similar content. All of the elements in the performance criteria set out in the unit and the assessments and training are mapped against those.
In his audit report Mr Comley expressed his concerns in this way. The unit of competency requires students to manage the relevant recruitment, selection and induction process. However the assessment tasks 2 and 3 required the student to undertake an interview and to induct new staff. He said this focused upon actually implementing the processes and that was contrary to the purpose of the unit which was to manage the processes. With respect to Mr Comley, it appears to me that this unit of competency is designed to do both of those things. That is because the Student Workbook produced by Innovation & Business Skills Australia (IBSA) which was amongst the documents in evidence dealing with this particular unit of competency sets out in its introduction the following:
This program will teach you about recruitment, selection and induction policies and procedures. It will help you analyse and develop policies and procedures. It will also discuss the training and ongoing support of workers in the recruitment, selection and induction processes as well as compliance with relevant legislation. You can research and find out about the standard forms that support these processes as well as the available technology. You can also learn how to write position descriptions, effective advertisements for successful recruitment and how to develop the interview skills and techniques needed to select the best candidate for a position.
Once you learn these knowledge and skills you will be able to analyse and develop policies and procedures needed to manage the recruitment, selection and induction processes in an organisation.
The documents clearly indicate that Mr Comley was correct in describing the assessment tasks 2 and 3. The assessment task 1 requires the student to identify the reasons regarding how information gathered helps with developing recruitment, selection and induction policies and procedures (T documents page 4977). Students are also required to develop the recruitment, selection and induction policies and procedures for the organisation, which is the subject of the test, from the information analysed in Part A of the assessment assignment. Also, assessment task 4, which is the written test, has a number of questions which have some relevance to policies and procedures required to manage recruitment selection and the induction processes. It therefore appears to me to be an overstatement to say, as does ASQA, that VICAT cannot rely on these assessments to collect evidence which is relevant to this unit of competency. While I agree that the expression used in some of these documents is not necessarily clear, I nevertheless find there is sufficient material which can be understood and from which a valid competency assessment can be made.
Mr Cribb was also critical of the instructions given to the student in respect of the written test, Assessment 4. He said there was no indication as to what constituted a successful completion of the test. In response, Mr Mitchell produced amended documents which were admitted into evidence. Under the student instructions was added: To be deemed competent in this assessment you will have to answer all questions correctly. In my opinion, the addition of that statement clarifies the position regarding the written test assessment.
The next criticism made by Mr Comley was in respect of ICA40405 – Certificate IV in Information Technology (Networking) (T documents page 5193). That qualification comprises, amongst other things, 16 Core Units, one of which is ICAW4214B – Maintain ethical conduct. The assessment methods used in this unit are a project; a test; a report and a case study.
Mr Cribb explained that in the document dealing with Assessment 2, which provided two Case Study scenarios (T documents page 5229), point 4 of the instructions to the student appeared to be incomplete. It stated: You should also refer to the following relevant areas in your answers. Mr Cribb submitted that rather than placing a full stop after the word answers, there should have been a colon followed by additional information. Quite plainly, that appears to have been the intention. According to Mr Cribb that might account for the reason why the Assessor Instructions regarding Assessment 2 suggested that under Scenario 1, the students should have provided realistic estimates such as to morale, cost, penalty and productivity.
Mr Mitchell pointed out that the documents in respect of this unit had now been amended. The requirement to provide realistic estimates such as morale, cost, penalty and productivity has been removed although he agreed that the instructions to the student at point 4 had not been altered. He believed that was an oversight.
Mr Cribb also referred to the Assessor Instructions in respect of Assessment 3 which was the Report (T documents page 5241). The second point under the heading The assessment as outlined in the student information should cover the following as a minimum requirement was: Question the client where more information is required. Mr Cribb also pointed out that the same statement appears on the Assessor Checklist where the assessor is required to answer yes or no regarding whether the student did question the client where more information was required. He explained that questioning of the client could not be addressed in a report exercise as it was more appropriate for a role-play exercise.
Mr Mitchell agreed but explained that the amended document dealing with Assessment 3 has deleted that requirement. My examination of the document discloses Mr Mitchell is correct. It has also been deleted from the Assessor Checklist.
The final matter addressed by Mr Cribb was the Assessor Checklist for Assessment 1 – Project (T documents page 5225); the Assessor Checklist for Assessment 2 – Case Studies (T documents page 5235); and the Assessor Checklist for Assessment 3 – Report (T documents page 5245) in respect of unit ICAW4214B. I should point out that in the non-compliance report provided by Mr Comley which was lodged with the Tribunal on 9 July 2013, this criticism did not appear. It appeared subsequently in Mr Comley's amended report which was lodged with the Tribunal on 11 July 2013.
ASQA's criticism of the Assessor Checklists was that they did not include any standard of performance or exemplar responses that would ensure consistent and reliable assessment judgement. There was also criticism of the exemplar responses or suggested solutions in respect of Assessment 4 – Written Assessment with respect to this unit. In his report, Mr Comley regarded those as incomplete [or] inadequate to ensure that the assessment outcomes would be valid or reliable.
Once again, Mr Mitchell referred to amended documents dealing with this unit. The test answers are far more detailed and exemplar answers have been provided in respect of the Project; Case Study and the Report. Mr Cribb expressed no concern with those amended documents. He did however venture the criticism that it appeared to him that VICAT was relying on ASQA to tell it when there were problems in the materials which VICAT then appeared happy to fix. Mr Cribb said: Doesn't quite work that way.
CONSEQUENCES OF FINDINGS
I am conscious of the fact that this matter involves the application of two discrete statutes: the NVR Act and the ESOS Act. While there may be some overlap in the statutory provisions dealing with registration, there are also fairly clear differences between them. For example, the NVR Act contains the following provision in s. 35 regarding audits:
35 Audits
(1)The National VET Regulator may, at any time, conduct a compliance audit of an NVR registered training organisation's operations to assess whether the organisation continues to comply with this Act or the VET Quality Framework.
(2)The National VET Regulator may also review or examine any aspect of an NVR registered training organisation's operations to determine any systemic issues relating to the quality of vocational education and training.
In addition, s. 17 of the NVR Act which deals with registration, also provides the following:
(3) When considering the application, the National VET Regulator may conduct an audit of any matter relating to the application.
The ESOS Act does not contain audit provisions. It grants monitoring powers to an authorised employee for a monitoring purpose which authorises the employee to enter any premises occupied by a registered provider for the purposes of providing courses, and exercise the monitoring powers set out in s. 131 (s. 130). The entry to premises must either be by the consent of the occupier or be made under a monitoring warrant. The expression monitoring purpose is a defined term in s. 5 of the ESOS Act and it means, amongst other things, a purpose of determining whether a registered provider is complying or has complied with the requirements of the ESOS Act or the National Code.
Registration under the ESOS Act, which includes renewal of registration, is conducted by the Secretary (of the Department of Education, Employment and Workplace Relations). The Secretary may, by signed writing, delegate any or all of his or her powers under the ESOS Act to, amongst others, the National VET Regulator (s. 170 (2)) which is in fact ASQA. The expression registered provider is defined in s. 5 of the ESOS Act and it means an AP who is entered on the Register as a provider of the course in a particular location. The Register is defined to mean the Register kept under s. 14A of the ESOS Act. Section 14A explains that the Register is called the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS).
Although the ESOS Act contains no audit provisions, the National Code under C. Registration on CRICOS at Clause 11 provides for inspection of premises. Clauses 11.1, 11.3 and 11.4 provide:
11.1 As part of the registration approval process, the designated authority will conduct at least one inspection of the provider's premises to ensure that the provider meets Standard 14 (Staff capability, education resources and premises). For this purpose, the provider's premises include all locations where the provider operates as well as the locations of providers with whom the provider has an arrangement. When applicable, it may also include sites of work-based training.
11.3 Further inspections will be conducted by the designated authority as appropriate during the period of CRICOS registration. These further inspections may include unscheduled visits when the designated authority deems such a visit is warranted.
11.4 An inspection will include interviews with management and staff of the provider. It may also include interviews with students and other clients of the provider and observations of teaching.
I have been unable to locate any other legislative authority for the conduct of the extensive audit ASQA conducted, ostensibly pursuant to the ESOS Act.
The reason I have raised the audit matters is that the audit report resulting from the audit was purportedly conducted under the ESOS Act on 22 and 23 February 2012. Despite there being no audit provisions set out in the ESOS Act; the Education Services for Overseas Students Regulations 2001; or the National Code; under Standard 14, the audit report describes the findings of non-compliance as: Refer to VET Quality framework findings. The same comment is noted in the report of the audit conducted on 5 and 6 June 2012.
As I have already indicated above, the expression VET Quality Framework is a defined term under the NVR Act. It includes the Standards for NVR Registered Training organisations. However, those standards do not appear to be applicable under the ESOS Act as standards under that legislation are provided in the National Code. They do not include any reference to VET Quality Framework. Furthermore, the Standards for NVR Registered Training Organisations are divided into two parts. Part 2 sets out the essential standards for initial registration as a NVR Registered Training Organisation while Part 3 contains essential standards for continuing registration.
While this may not be particularly significant, and I can readily understand why the audit conducted under the NVR Act was seen to be the appropriate opportunity to monitor VICAT's operations under the ESOS Act in order to determine compliance with the National Code, some care should be taken in such circumstances not to confuse compliance with the National Code with the VET Quality Framework. There may also be a serious question about the legitimacy of the so-called audit conducted under the ESOS Act. However, I make no findings about that. It is sufficient for me to repeat that the legislation may need reconsideration.
The only issue which arose for consideration under the NVR Act was VICAT's alleged non-compliance with the VET Quality Framework. Subdivision B of the NVR Act deals with conditions of registration. In particular, s. 21 provides:
21 Complying with conditions
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:Failure to comply with a condition of registration is a contravention of a civil penalty provision, see section 111.
Section 22 provides:
22 Condition – compliance with the VET Quality Framework
(1)An NVR registered training organisation must comply with the Standards for NVR Registered Training Organisations.
(2)An NVR registered training organisation must comply with the Australian Qualifications Framework.
(3)An NVR registered training organisation must comply with the Data Provision Requirements.
The first and subsequent follow-up audits of VICAT’s operation were confined to examining its documents in order to establish compliance with the VET Quality Framework, and in particular compliance with the NVR Standards. While I have no doubt that a registered training organisation's documents play an important and significant role in determining whether its operations comply, it is not the only aspect of its operations which should be examined. In fact I asked Mr Cribb whether ASQA received any information about students having made complaints about VICAT. Mr Cribb explained that ASQA had a number of units, one of them being a complaints unit. Mr Cribb said there was nothing of that nature in the material and he had no instructions about any complaints having been made. However, then Mr Cribb drew my attention to a report prepared by the Australian Council for Educational Research (ACER) which was taken into evidence.
The ACER report appears to have been made on 31 May 2012 although the comparative data appears to have been collected in 2011. It is obviously based on a questionnaire and the responses provided by students at VICAT. The response information appears to indicate 97 responses from a population of 97. With respect to the compiler of the report, that cannot be correct. VICAT has in excess of 400 enrolled students and the expression population in the context of statistics is a reference to all of the objects (including people) which one wishes to measure. Otherwise, it is referred to as a sample (How to Think About Statistics, Sixth Edition, John L Phillips, 2002). This sample is about 24.25% of the population. The nature of the sample and whether it is likely to be indicative of the population is not stated. While that in itself does not make the report unreliable, there remains a substantial margin for error.
The ACER report contains a comparison between VICAT, like RTO's and all RTO's. In fact, no like RTO's were identified due to the fact that there were insufficient RTOs against which the data could be compared. However, the all RTO's category contained some 119 organisations. Unfortunately, there was no information regarding their nature. It is therefore not possible to determine whether like was being compared with like. Nevertheless, Mr Cribb pointed to the fact that in the engagement scales which list a number of qualities assessed based on a scale of 0 to 100, VICAT, while having training resources equal to all RTO's, was generally lower than all RTO's by about four or five points. With respect to Mr Cribb, as I explained in the course of the hearing, there is no way of knowing whether the comparisons are valid. In any event, allowing for a margin of error, the differences between the scores are probably not significant.
Also included amongst the documents was what was described as a VICAT Student Feedback which appears to have been compiled in April 2012. The responses to the questionnaires put to a sample of 86 students were graded between 1 and 4 ranging from strongly disagree to strongly agree. Of particular interest was the question relating to training facilities and materials, which the question proposed were in good condition. Only 11 of the 86 students disagreed with that proposition while the remainder either agreed or strongly agreed. None of the students strongly disagreed. In answer to the question whether the students were satisfied with the training, nine strongly disagreed and five disagreed. The remainder either agreed or strongly agreed. While once again, the sample is relatively small, there is nothing in that feedback survey which would raise serious concerns regarding the quality of training provided by VICAT.
As I have already said above, ASQA's focus in the course of its audit and follow-up audit was on the documents. Furthermore, as Mr Mitchell submitted, in making a decision under s. 17 of the NVR Act, ASQA may grant an application for registration (or renewal of registration) after considering whether an applicant complies with the VET Quality Framework. In other words, ASQA was not required to be satisfied that VICAT complied with the VET Quality Framework, but simply to consider whether VICAT complied with the VET Quality Framework. Presumably, if it thought appropriate to do so, ASQA could impose one or more conditions on VICAT's registration.
I did not understand VICAT to be disputing that the matters identified by Mr Comley in its documents which Mr Comley said were non-compliant were in fact compliant. Rather, the evidence disclosed that VICAT had responded positively to the items identified by Mr Comley as being non-compliant and sought to rectify those documents. In fact in his closing submissions Mr Cribb said it appeared that VICAT was relying on ASQA to tell it when there were problems in its materials. VICAT was content to fix the problems identified by ASQA but Mr Cribb claimed that the system did not work in that way. Mr Cribb submitted that VICAT was not compliant and that it was relying on ASQA to give it feedback so that it could provide the correct materials.
However, a little later in his submissions Mr Cribb said that taking into account the additional material received on the last day of the hearing, VICAT may have complied with the standards. He said that until the last day of the hearing and certainly at the time ASQA made its decision and subsequently, VICAT had not complied with those standards. As I understood that submission, Mr Cribb seemed to be questioning the point in time at which the Tribunal should consider VICAT was compliant with the standards.
This question has now been dealt with authoritatively by the High Court of Australia in Shi v Migration Agents Registration Authority (2008) 235 CLR 286. Kirby J said, at 299 – 300:
When making a decision, administrative decision-makers are generally obliged to have regard to the best and most current information available. This rule or practice is no more than a feature of good public administration. When, therefore, the Tribunal elects to make "a decision in substitution for the decision so set aside", as the Act permits, it would be surprising in the extreme if the substituted decision did not have to conform to such a standard.
Further, Hayne and Heydon JJ said, at 315:
Once it is accepted that the Tribunal is not confined to the record before the primary decision-maker, it follows that, unless there is some statutory basis for confining that further material to such as would bear upon circumstances as they existed at the time of the initial decision, the material before the Tribunal will include information about conduct and events that occurred after the decision under review. If there is any such statutory limitation, it would be found in the legislation which empowered the primary decision-maker to act; there is nothing in the AAT Act which would provide such a limitation.
Kiefel J, dissenting, said, at 328:
Where the decision to be made contains no temporal element, evidence of matters occurring after the original decision may be taken into account by the Tribunal in the process of informing itself. Cases which state that the Tribunal is not limited to the evidence before the original decision-maker, or available to that person, are to be understood in this light (162). It is otherwise where the review to be conducted by the Tribunal is limited to deciding the question by reference to a particular point in time (163).
Neither the NVR Act nor the ESOS Act contains any express or implied temporal limitations when dealing with registration or renewal of registration applications. Therefore, I find that I should consider all of the material which was before me at the hearing of this matter. That includes all of the rectifications made by VICAT as a result of findings of non-compliance by ASQA prior to completion at the hearing.
As I have mentioned above, at the commencement of his closing submissions Mr Cribb identified what he considered to be the obvious serious matters and deficiencies in the learning materials produced by VICAT. I have explored those above. They all relate to the National Code and not the NVR Standards. In fact, they all appear to fall within NC 14.2. That standard refers to the registered provider being required to have adequate education resources, including learning resources. In the context in which the adjective adequate appears in NC 14.2, it appears to mean: 2. Commensurate in fitness; sufficient, suitable (The Shorter Oxford English Dictionary). In other words, the learning resources need not be of a high standard but simply fit or sufficient to serve the purpose for which they are provided.
As Mr Mitchell said in his closing submissions, Mr Cribb conceded that VICAT may now be compliant. Mr Mitchell nevertheless conceded there may be some non-compliance, in that an assessment tool may be lacking something which could be improved upon. He said it would be improved upon and that the Tribunal could be confident that would occur because VICAT had a history of continuous improvement. He conceded that the recent continuous improvement had taken place under the threat of the ASQA sanction. I also accept Mr Mitchell's submission that the audit reports are not particularly clear in some areas regarding the nature of the non-compliance. Nevertheless, he submitted that the applicants have worked out what it was that ASQA had to say and, not always accepting there had been non-compliance, changed its documents to address the concerns made by the Regulator. He submitted that because ASQA would, in future, be monitoring the operations of VICAT closely, its compliance with the NVR Standards and the National Code was assured.
The first questions which I am required to address then are whether ASQA's decisions to refuse to renew VICAT's registration under the NVR Act and under the ESOS Act were the preferable decisions. I should also now deal with ASQA's decision to suspend all of VICAT's scope of registration pursuant to s. 38 (1) the NVR Act. The first two decisions were made concurrently on 3 October 2012 and on that date ASQA also provided VICAT with a notice indicating its intention to make the decision to suspend all of VICAT's scope of registration. The notice of decision to suspend registration pursuant to s. 37 (2) of the NVR Act was given on 13 November 2012.
ASQA's refusal to renew VICAT's registration is plainly discretionary, after considering whether it complied with the VET Quality Framework. Given the concessions made by Mr Cribb at the conclusion of the hearing regarding compliance with the NVR Standards essential for continuing registration (SNR 15 – SNR 25), the grounds for refusal to renew registration under the NVR Act appear to have fallen away. In fact, as a result of the detailed and lengthy cross-examination of Mr Comley and the provision of a document dealing with the rectification/justification in response to Mr Comley's first non-compliance report, it is clear to me that VICAT has made a conscientious effort to, where necessary, rectify those matters identified by Mr Comley. No matters remain which are of such significance that they warrant refusal to renew registration under the NVR Act. Accordingly, I find that VICAT's renewal of registration under the NVR Act should now be granted.
ASQA's decision to suspend all of VICAT's scope of registration was made under the sanctions provisions set out in s. 36 of the NVR Act which apply to RTOs. Section 36 (1)(a) provides:
36 Sanctions
(1) This Subdivision applies if:
(a) after natural justice requirements have been satisfied, the National VET Regulator is satisfied that it is appropriate to impose one or more sanctions on an NVR registered training organisation; or…
Section 36 (2)(e) provides:
(2) The National VET Regulator may do one or more of the following:
(e) suspend all or part of an NVR registered training organisation's scope of registration under section 38;…
In the notice of intention to make the decision to suspend VICAT's scope of registration, the reasons given were: for the same reasons as particularised in ASQA's letter of 3 October 2012 giving notice of rejection of the RTO's application for renewal of registration,….
VICAT did not respond to the notice and accordingly ASQA suspended its scope of registration.
Given the decision I have made regarding the refusal to renew VICAT's registration under the NVR Act and the reasons therefore, it follows I must necessarily set aside the suspension decision made on 13 November 2012.
ASQA's refusal to renew VICAT's registration under the ESOS Act was made pursuant to s. 9AB (1)(f)(i) on the grounds that it had not complied or will not comply with the ESOS Act or the National Code.
The issues addressed by Mr Cribb in his closing submissions, which he said he considered to be the obvious serious matters, have been dealt with above. Not only have ASQA's concerns regarding compliance with NC 14.2 been addressed, perhaps with one minor exception, I must say and I mean no criticism of Mr Cribb or Mr Comley, the matters Mr Cribb identified do not appear to be what was described as serious matters. Essentially, they comprised errors and omissions in some of the learning materials and documents in a relatively small number of units of competency. As I have already explained, to satisfy the standard set out under NC 14.2, the registered provider is required to have adequate education resources. It was not the case that there was an absence of resource materials. The complaints were essentially about the content of those materials, and in some instances, simply typographical errors. Except for one matter, those complaints had been addressed and are now considered by ASQA to meet the standard.
While it is correct to say, as does ASQA, that VICAT appears to have relied significantly on Mr Comley's audit report and subsequent discussions in order to get its materials up to a standard acceptable to ASQA, I accept Mr Mitchell's submission that having been through this process, VICAT is likely to be more critical of its documents and its continued improvement and maintenance of those materials.
I should also briefly say something about the expressions used in s. 9AB of the ESOS Act. The Secretary must not register an AP in any circumstances other than where the applicant satisfies the requirements set out in subsection (1) (s. 9AB (2)). The requirements set out in subsection (1)(f) are preceded by the words: the Secretary has no reason to believe that the provider…. The expression reason to believe is not a reference to the civil standard of proof. The High Court of Australia (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ) in George v Rockett (1990) 170 CLR 104, when dealing with the grounds for issuing a search warrant, said at 116:
The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances leave something to surmise or conjecture.
In this case, although the expression is couched in the negative, the same reasoning should be applied. In other words, so long as the Secretary (or in this case, the Tribunal) has some evidence leading to an inclination that VICAT will comply with the ESOS Act or the National Code in the future, that should be sufficient to satisfy approval of an application to renew registration. Given the significant work which VICAT has undertaken in an attempt to satisfy all of the issues raised by the non-compliance report, I find there is reason to believe that it will comply with the ESOS Act and the National Code in the future.
CONCLUSION
Following an audit conducted by ASQA in February 2012 where it found numerous instances of non-compliance with the NVR Standards and the National Code, and a follow-up audit conducted in June 2012, a number of non-compliant matters remained. On that basis, in October 2012 ASQA rejected VICAT's application for renewal of its registration as an RTO under the NVR Act and as an AP under the ESOS Act. It also rejected VICAT's application under the NVR Act to add a number of courses to its scope of registration and an application made under the ESOS Act to add courses to its registration for provision to overseas students. It rejected VICAT's application to increase the number of overseas students it could enrol at any one time. Subsequently, in November 2012, ASQA also decided to suspend VICAT's entire scope of registration under the NVR Act with the restriction that it was not to enrol any student in a VET course or part of a VET course from November 2012.
Between the end of 2012 and the commencement of the hearing of this matter on 8 July 2013, VICAT continued to rectify and attempt to rectify the matters (essentially documents) said to be non-compliant by ASQA. In fact this process continued during the course of hearing this matter such that Mr Comley provided an amended non-compliance report on 11 July 2013. In his closing submissions, Mr Cribb referred to a further edited or culled version of Mr Comley's complaints which he considered to be the obvious serious matters which he said remained outstanding. None of those matters related to the NVR Standards but rather, they arose under NC 14.2 of the National Code. In essence, the remaining non-compliance identified by Mr Comley was in respect of learning resources or documents in respect of particular units of competency (subjects).
My examination of those matters regarded by Mr Comley as remaining non-compliant did not disclose any serious problems as claimed by Mr Cribb. In fact, some of the matters referred to were simply typographical errors and some appeared to be the result of subjective opinion regarding compliance. Also, in response to Mr Comley's amended non-compliance report, VICAT had produced a number of amended documents which I have found were satisfactory. In making that determination, I was also mindful of the fact that NC 14.2 requires the registered provider to have adequate education resources. I have no doubt that documents described as adequate can fit within a range of standards, some at the very high end of the requirement and some at a much lower end. Nevertheless, all of those documents may be described as adequate. At the conclusion of that assessment, there appeared to be only one document which had not been amended and which required amending. I have no doubt that VICAT intended to correct that document.
Taking into account all of the material and evidence before me at the conclusion of hearing this matter, I have found that VICAT is substantially compliant with the NVR Standards and the National Code. On that basis, I find that ASQA's decision to refuse renewal of registration of VICAT as an RTO under the NVR Act (matter no 2012/4483) and as an AP under the ESOS Act (matter no 2012/4484) can no longer be sustained. Accordingly, I set aside the decisions made by ASQA on 3 October 2012 rejecting VICAT's application for renewal of its registration under both statutes.
Given my findings regarding the renewal of registration applications under both Acts, I also set aside the decision made by ASQA on 13 November 2012 to suspend all of VICAT's scope of registration under s. 38 (1) of the NVR Act (matter no 2012/5253). The grounds for making that decision were identical to the grounds for refusing renewal of registration in October 2012.
As for ASQA's decision to reject VICAT's application to add a number of courses to its scope of registration under the NVR Act (matter no 2012/4482) and to its registration for provision of courses to overseas students under the ESOS Act (matter no 2012/4478), I remit those decisions to ASQA directing that they be reconsidered in light of the findings I have made in respect the renewal of VICAT's registration under both statutes. I did not have material before me nor were any submissions made which would assist me in coming to the correct or preferable decision in respect of those matters. Similarly, I remit VICAT's decision made under s. 9AF of the ESOS Act to increase the number of overseas students enrolled at any one time from 450 to 800 (matter no 2012/4481) to be reconsidered in light of my findings regarding the renewal applications.
I certify that the preceding 97 (ninety -seven) paragraphs are a true copy of the reasons for the decision herein of
Senior Member Egon Fice....[sgd]....................................................................
Associate
Dated 27 September 2013
Dates of hearing 8-12 July 2013 Counsel for the Applicant Mr T Mitchell Solicitors for the Applicant GPZ Legal Advocate for the Respondent Mr P Cribb Solicitors for the Respondent Australian Skills and Quality Authority
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