Maxine Elizabeth Galpin, trading as Australian Online Racing Accreditation or A.O.R.A. and Australian Skills Quality Authority - [2021] AATA 309

Maxine Elizabeth Galpin, trading as Australian Online Racing Accreditation or A.O.R.A. and Australian Skills Quality Authority [2021] AATA 309 (25 February 2021)
Division:GENERAL DIVISION
File Number:2019/0521
Re:Maxine Elizabeth Galpin, trading as Australian Online Racing Accreditation or A.O.R.A.
APPLICANT

AndAustralian Skills Quality Authority
RESPONDENT

DECISION
Tribunal:Member K. Parker
Date:25 February 2021
Place:Melbourne

The Tribunal affirms the Decision Under Review. This decision will take effect immediately.
...[sgd].....................................................................
Member K. Parker
Catchwords
VOCATIONAL EDUCATION AND TRAINING – cancellation of registered vocational education and training organisation – breach of conditions of registration under the National Vocational Education and Training Regulator Act 2011 (Cth) – non-compliance with Standards for Registered Training Organisations 2015 – inadequate assessment systems – assessment guides not adhered to when undertaking assessments – insufficient evidence of skills relied upon when recognition of prior learning assessment undertaken – training and assessment strategies and tools not prepared for new racing courses and Applicant not ready to deliver them – further professional development required of Applicant’s trainer and assessor in respect of delivering vocational education and training – Applicant does not meet conditions of registration and Tribunal considers considerable work needs to be done before Applicant will be compliant with all of the Standards and meet conditions of registration – whether Applicant ensured that its executive officer and high managerial agent complied with the “fit and proper person requirements” – Decision Under Review affirmed
Cases
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Re Australian Tertiary Academy Pty Ltd and ASQA [2018] AATA 1360
Re Brown and MARA [2015] AATA 693
Re Claredale Academy Pty Ltd and Australian Skills Quality Authority [2019] AATA 1869
Council of the NSW Bar Association v Franklin (No 2) [2014] NSWCA 428
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Education Services for Overseas Services Act 2000 (Cth)
National Vocational Education and Training Regulator Act 2011 (Cth)
Student Identifiers Act 2014 (Cth)
Legislative Instruments
Standards for Registered Training Organisations 2015 (Cth)
REASONS FOR DECISION
Member K. Parker
25 February 2021
INTRODUCTION

The Applicant, Ms Maxine Galpin, is the sole proprietor of a “NVR registered training organisation”[1] (RTO) under the National Vocational Education and Training Regulation Act 2011 (Cth) (NVR Act) delivering vocational education and training (VET). The Applicant is trading under the business name Australian Online Racing Accreditation and at other times A.O.R.A. The Tribunal will refer to Ms Galpin’s RTO as the Applicant in these Reasons for Decision.
[1] Section 3 of the NVR Act provides that a “NVR registered training organisation means a training organisation that is registered by the National VET Regulator as a registered training organisation under this Act”. The National VET Regulator is defined in s 3 as meaning the body established by s 155 of the NVR Act (being the Australian Skills Quality Authority (ASQA) – see s 155(1A)).
The Respondent, Australian Skills Quality Authority (ASQA), is a Commonwealth statutory body responsible…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Maxine Elizabeth Galpin, trading as Australian Online Racing Accreditation or A.O.R.A. and Australian Skills Quality Authority [2021] AATA 309
Case: [2021] AATA 309
Decision Date: 25 February 2021

CaseChat Overview and Summary

This matter concerned an application by Maxine Elizabeth Galpin, trading as Australian Online Racing Accreditation or A.O.R.A. (the Applicant), for review of a decision by the Australian Skills Quality Authority (ASQA) to cancel her registration as a Registered Training Organisation (RTO). The Administrative Appeals Tribunal (the Tribunal) was required to consider whether the cancellation of the Applicant's RTO registration was appropriate, or if any other sanction should be imposed under the *National Vocational Education and Training Regulator Act 2011* (Cth) (NVR Act).

The legal issues before the Tribunal included whether the Applicant had failed to comply with various Standards for Registered Training Organisations 2015 (the Standards), and whether she met the "fit and proper person requirements" under section 23 of the NVR Act. Specifically, the Tribunal had to determine if the Applicant's assessment systems were inadequate, if assessment guides were not adhered to, if there was insufficient evidence for recognition of prior learning assessments, and if training and assessment strategies were not prepared for new racing courses. The Tribunal also considered whether the Applicant's trainer and assessor required further professional development and if the Applicant's executive officer and high managerial agent complied with the fit and proper person requirements.

The Tribunal's reasoning was based on the Applicant's non-compliance with several conditions of registration under the NVR Act and the Standards. Evidence indicated inadequate assessment systems, including the failure to adhere to assessment guides and insufficient evidence supporting recognition of prior learning. Furthermore, the Applicant was not ready to deliver new racing courses, and her trainer and assessor required further professional development. The Tribunal found that considerable work was necessary before the Applicant could achieve compliance with all the Standards and meet her registration conditions. Consequently, the Tribunal affirmed ASQA's decision to cancel the Applicant's registration as an RTO.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

In deciding this application, the Tribunal must consider whether it is appropriate to cancel the registration of the Applicant as an RTO, or to impose upon the Applicant any other sanction authorised under the NVR Act. The Tribunal will consider whether the Applicant has failed to comply with a number of the Standards, and any other relevant circumstances relevant to the operation of the Applicant as an RTO. BACKGROUNDScope of registration As at date of the Decision under Review, the Applicant’s scope of registration under the NVR Act included the following courses:(a)RGR20108 Certificate II in Racing (Stablehand);(b)RGR30208 Certificate III in Racing (Advanced Stablehand);(c)RGR40108 Certificate IV in Racing (Racehorse Trainer);(d)RGR50108 Diploma of Racing (Racehorse Trainer);(e)RGR40118 Certificate IV in Racing (Racehorse Trainer); and(f)RGR50118 Diploma of Racing (Racehorse Trainer). The first four of those courses, referred to in paragraphs [31(a) to (d)], were superseded in 2018 by the following courses:(a)RGR20218 Certificate II in Racing Industry;(b)RGR30218 Certificate III in Racing (Stablehand);(c)RGR40118 Certificate IV in Racing (Racehorse Trainer); and (d)RGR50118 Diploma of Racing (Racecourse Trainer). The “teach-out” period allowed by Clause 1.26 of the Standards expired on 4 July 2019.[12] This means that the four courses referred to in paragraphs [31(a) to (d)] inclusive are no longer able to be delivered by any RTO and they are not within the Applicant’s scope of registration. On 28 June 2019, the “teach-out” period for courses numbered RGR30208 and RGR40108 was extended by ASQA and they were able to be delivered until 31 December 2019.[12] Refer paragraph [23] of ASQA’s SFIC. The Tribunal was informed that the two courses, referred to in paragraphs [31(e) and (f)], were automatically added to the Applicant’s scope of registration when the courses referred to in paragraphs [31(c) and (d)] were superseded. It is those two courses that Ms Galpin stated she was intending to deliver if the Applicant’s registration was reinstated.[13] The Tribunal will refer to those two new “racehorse trainer” courses collectively in these Reasons for Decision as the New Courses.ASQA “initial registration” audit – March 2015[13] Refer Transcript P-84. When the Applicant applied for registration as an RTO, ASQA conducted an “initial registration” audit in March 2015 (2015 Audit). At the 2015 Audit, ASQA identified non-compliance with Clauses 1.1, 1.2, 1.3, 1.4, 1.5, 1.6, 1.7, 1.8, 1.9, 1.10, 1.16, 2.1, 2.2, 2.3 3.2, 3.6, 5.2, 5.3 and 7.3 of the Standards. The Applicant responded to ASQA’s notice of non-compliance by providing rectification evidence. ASQA reviewed this evidence and while it was satisfied that the Applicant had resolved some of those non-compliances, it assessed the Applicant as remaining non-compliant with most of them. Due to those outstanding non-compliances, on 31 July 2015, ASQA rejected the Applicant’s application for registration.

Evidence

Evidence Before The Court

The Applicant also engaged a VET consultant and auditor, Mr Anthony Feagan, and relied upon his affidavit sworn on 21 December 2019 and report prepared by him dated 12 December 2019 in relation to the alleged non-compliances and what the Applicant had done by way of rectification. ASQA’s affidavits and documentary evidence ASQA relied upon two affidavits sworn by an ASQA Lead Regulatory Officer, Mr Ian Penna, on 21 February 2019 (Mr Penna’s First Affidavit)[7] and 12 February 2020 (Mr Penna’s Second Affidavit).[8] Mr Penna’s Second Affidavit was incorrectly dated 11 February 2019. [7] Refer Exhibit “R1”.[8] Refer Exhibit “R2”. Mr Penna has three formal qualifications supporting his role as an ASQA auditor:(a)a Diploma of Quality Auditing;(b)a Certificate IV in Training and Assessment; and(c)a Certificate IV in Government Investigation (obtained in 2016).[9][9] Refer Transcript at P-123. Mr Penna conducted the “post initial” audit of Ms Galpin. Mr Penna was also called as a witness at the substantive hearing and gave further evidence as detailed below. ASQA lodged a set of documents in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The Tribunal will refer to this set of documents as the T-Documents.[10] Further evidence was lodged during and after the hearing (some at the request of the Tribunal) and this has been considered. [10] ASQA lodged with the Tribunal a set of T-Documents dated 1 March 2019, totalling 550 pages.Submissions by the parties, hearing and decision The parties each lodged a statement of facts, issues and contentions (SFIC) and a tender bundle of materials for the video hearing (ASQA’s Tender Bundle and the Applicant’s Tender Bundle). The hearing of the substantive application took place by video-link over three days on 26, 27 and 28 October 2020. The Applicant was self-represented. For the reasons set out below, the Tribunal considers it appropriate in the circumstances for the Applicant’s registration as an RTO to be cancelled. Accordingly, the Tribunal affirms the Decision Under Review. LEGISLATIVE FRAMEWORKObjectives of the NVR Act RTOs are currently regulated by ASQA under the NVR Act. All references made to section numbers in these Reasons for Decision are references to provisions of the NVR Act except where otherwise indicated. The objectives of the NVR Act are set out in s 2A and provide as follows:2A The objects of this Act are:(a)to provide for national consistency in the regulation of vocational education and training (VET); and(b)to regulate VET using:(i) a standards-based quality framework; and (ii) risk assessments, where appropriate; and(c) to protect and enhance:(i) quality, flexibility and innovation in VET; and(ii)Australia’s reputation for VET nationally and internationally; and(e)to provide a regulatory framework that encourages and promotes a VET system that is appropriate to meet Australia’s social and economic needs for a highly educated and skilled population; and(f)to protect students undertaking, or proposing to undertake, Australian VET by ensuring the provision of quality VET; and(g)to facilitate access to accurate information relating to the quality of VET.Note 1:The standards‑based quality framework mentioned in paragraph (b) consists of instruments made by the Ministerial Council, the Minister or the National VET Regulator.Note 2:These objects are subject to the constitutional basis for this Act (see Division 3).

Decision

Reasons for decision

By letter dated 15 January 2019, ASQA gave notice to the Applicant of its decision to cancel her registration as an RTO with effect from 19 February 2019 (Decision Under Review). The Applicant sought review by the General Division of the Administrative Appeals Tribunal (this Tribunal).The Applicant’s affidavits and documentary evidence The Applicant relied upon the following affidavits and documentary evidence:(a)documentary evidence provided to ASQA on behalf of the Applicant on 12 July 2019;(b)affidavit of Maxine Galpin sworn 24 December 2019;(a)further documentary evidence lodged by the Applicant at various stages during this proceeding, totalling in excess of 500 pages. The Applicant also engaged a VET consultant and auditor, Mr Anthony Feagan, and relied upon his affidavit sworn on 21 December 2019 and report prepared by him dated 12 December 2019 in relation to the alleged non-compliances and what the Applicant had done by way of rectification. ASQA’s affidavits and documentary evidence ASQA relied upon two affidavits sworn by an ASQA Lead Regulatory Officer, Mr Ian Penna, on 21 February 2019 (Mr Penna’s First Affidavit)[7] and 12 February 2020 (Mr Penna’s Second Affidavit).[8] Mr Penna’s Second Affidavit was incorrectly dated 11 February 2019. [7] Refer Exhibit “R1”.[8] Refer Exhibit “R2”. Mr Penna has three formal qualifications supporting his role as an ASQA auditor:(a)a Diploma of Quality Auditing;(b)a Certificate IV in Training and Assessment; and(c)a Certificate IV in Government Investigation (obtained in 2016).[9][9] Refer Transcript at P-123. Mr Penna conducted the “post initial” audit of Ms Galpin. Mr Penna was also called as a witness at the substantive hearing and gave further evidence as detailed below. ASQA lodged a set of documents in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The Tribunal will refer to this set of documents as the T-Documents.[10] Further evidence was lodged during and after the hearing (some at the request of the Tribunal) and this has been considered. [10] ASQA lodged with the Tribunal a set of T-Documents dated 1 March 2019, totalling 550 pages.Submissions by the parties, hearing and decision The parties each lodged a statement of facts, issues and contentions (SFIC) and a tender bundle of materials for the video hearing (ASQA’s Tender Bundle and the Applicant’s Tender Bundle). The hearing of the substantive application took place by video-link over three days on 26, 27 and 28 October 2020. The Applicant was self-represented. For the reasons set out below, the Tribunal considers it appropriate in the circumstances for the Applicant’s registration as an RTO to be cancelled. Accordingly, the Tribunal affirms the Decision Under Review. LEGISLATIVE FRAMEWORKObjectives of the NVR Act RTOs are currently regulated by ASQA under the NVR Act. All references made to section numbers in these Reasons for Decision are references to provisions of the NVR Act except where otherwise indicated.

Ratio Decidendi

Legal Principle Established

Section 21 mandates that an RTO must comply with the conditions set out in ss 22 to 28. The importance of due compliance with those conditions is reflected in s 111, which renders contravention of the conditions set out in s 21 subject to civil penalties.Conditions of registration The conditions of registration relevant in this application include:(a)under s 21, that an RTO must comply with the conditions set out in ss 22 to 28 of the NVR Act and any other condition imposed upon its registration under s 29(1) of the NVR Act;(b)under s 22, that an RTO must comply with the NVR RTO Standards, Quality Standards, AQF and DPR. The NVR RTO Standards are defined as meaning standards made under s 185 by the Minister, by legislative instrument, and as agreed by the Ministerial Council. The Minister issued a standard under s 185(1) and s 186(1), entitled Standards for Registered Training Organisations (RTOs) 2015 (Standards);(c)under s 22A, that an RTO must “demonstrate a commitment, and the capability, to deliver quality vocational education and training”;(d)under s 23, that an RTO must satisfy the FPPR. Schedule 3 to Attachment A of the Standards contain the FPPR;[11] (e)under s 24, that an RTO must satisfy the FVRAR;(f)under s 25, that an RTO must notify ASQA of material changes to the organisation as prescribed in this provision;(g)under s 26, that an RTO must give ASQA such information as ASQA requests, by notice in writing, for the purposes of this Act, so long as the organisation is capable of complying with the request; and(h)under s 27, that an RTO must cooperate with ASQA, at least to the extent that it is necessary for ASQA to perform its functions or to facilitate ASQA’s performance of its functions.[11] Refer Standard 7. The structure of the Standards is also set out in Part 1- Preliminary, as follows (emphasis added):StructureThese Standards consist of eight Standards. Under each Standard is a set of Clauses of the Standard. To comply with a Standard, the RTO must meet each of the Clauses. A person applying to register as a new RTO must demonstrate the capacity to meet these Standards for all of the person’s intended scope of registration.For each Standard a context statement is also included. The context does not form part of the Standard itself, and has been included to provide background information to help readers understand the Standard. The Standards and Clauses are collectively referred to as Standards.FPPR Section 23 of the NVR Act provides that an RTO must satisfy the FPPR. Standard 7 of the Standards requires that, “The RTO has effective governance and administration arrangements in place”.Clause 7.1 is relevant in this application and provides as follows:To be compliant with Standard 7 the RTO must meet the following: 7.1 The RTO ensures that its executive officers or high managerial agent:a) are vested with sufficient authority to ensure the RTO complies with the RTO Standards at all times; andb) meet each of the relevant criteria specified in the Fit and Proper Person Requirements in Schedule 3.…