Maxine Elizabeth Galpin, trading as Australian Online Racing Accreditation or A.O.R.A. and Australian Skills Quality Authority

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 for regulating compliance by RTOs of their obligations under:
(a)the NVR Act;
(b)the VET Quality Framework; and
(c)as required by the statutory conditions of registration, as referred to below.[2]
[2] Refer s 55 of the NVR Act.
The VET Quality Framework comprises:[3]
(a)the Standards for NVR Registered Training Organisations (NVR RTO Standards);
(b)the Quality Standards;
(c)the Australian Qualifications Framework (AQF);
(d)the Fit and Proper Person Requirements (FPPR);
(e)the Financial Viability Risk Assessment Requirements (FVRAR); and
(f)the Data Provision Requirements (DPR).
[3] Refer s 3 of the NVR Act.
ASQA may grant registration under the NVR Act to a VET training organisation for a period not exceeding seven years, following which ASQA may renew an RTO’s registration.[4] ASQA may suspend or cancel such registration or impose other sanctions on an RTO “in any circumstances” where ASQA “considers it appropriate to do so”.[5] ASQA may also make decisions about the scope of registration of an RTO; that is, what courses it is permitted to deliver.[6]
[4] Refer s 17 of the NVR Act.
[5] Refer s 39(1) of the NVR Act.
[6] Refer ss 32, 33 and 34 of the NVR Act.
The Applicant was first registered by ASQA as an RTO on 30 March 2016 for four years. ASQA initially rejected the Applicant’s application for registration, following which a review process ensued before the Administrative Appeals Tribunal. This review process resulted in a settlement reached between the Applicant and ASQA, part of which included a decision by ASQA to register the Applicant for four years.
On 8 August 2018, ASQA conducted a “post initial” audit to assess the Applicant’s compliance with the NVR Act and the NVR RTO Standards. The Applicant was found to be non-compliant with some clauses of the NVR RTO Standards. ASQA gave notice of its intention to cancel the Applicant’s registration on 29 October 2018 and provided it with an opportunity to respond.
On 13 November 2018 the Applicant provided a response and evidence of rectification.
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 FRAMEWORK
Objectives 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).
The legislated functions of ASQA are set out in s 157. ASQA is empowered, as the relevant VET regulator, to undertake enforcement action and to make decisions intended to promote and protect students, and the general reputation of the VET sector, nationally and internationally. ASQA’s function is to ensure that registered RTOs are operating in compliance with their obligations under the applicable legislative regime, and that they continue to meet the statutory conditions of registration.
Section 17 provides for the grant of registration by ASQA as follows:
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.
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):
Structure
These 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; and
b) meet each of the relevant criteria specified in the Fit and Proper Person Requirements in Schedule 3.
…
Section 3 defines an “executive officer”, relevantly, as follows:
executive officer, in relation to a registered training organisation, means:
(a)a person, by whatever name called and whether or not a director of the organisation, who is concerned in, or takes part in, the management of the organisation; or
(b) if the organisation is a body corporate:
(i)a person who, at any time during a period for which the organisation is registered, owns 15% or more of the organisation; or
(ii)a person who, at any time during a period for which the organisation is registered, is entitled to receive 15% or more of dividends paid by the organisation; or
(c)…
Section 3 defines “high managerial agent” as follows:
high managerial agent of a registered training organisation means an employee or agent of the organisation with duties of such responsibility that his or her conduct may fairly be assumed to represent the organisation in relation to the business of providing courses.
The FPPR comprise Schedule 3 to the Standards, as reproduced below:
Fit and Proper Person Requirements
Criteria for suitability
In assessing whether a person meets the Fit and Proper Person Requirements, the VET Regulator will have regard to the following considerations:
(a) whether the person has been convicted of an offence against a law of the Commonwealth or a State or Territory of Australia, or of another country, and if so, the seriousness of the offence and the time elapsed since the conviction was recorded;
(b) whether the person has ever been an executive officer or high managerial agent of an RTO at a time that the RTO had its registration on the National Register cancelled or suspended by its VET Regulator for having breached a condition imposed on its Registration;
(c) whether the person has ever been an executive officer or high managerial agent of an RTO at a time that the RTO was determined to have breached a condition of its registration under the Education Services for Overseas Students Act 2000 or the Tertiary Education Quality and Standards Agency Act 2011;
(d) whether the person has ever become bankrupt, applied to take the benefit of a law for the benefit of bankrupt or insolvent debtors, compounded with his or her creditors or assigned his or her remuneration for the benefit of creditors, and if so, the time elapsed since this event occurred;
(e) whether the person has ever been disqualified from managing corporations under Part 2D.6 of the Corporations Act 2001, and if so, whether the disqualification remains in place;
(f)    whether the person was involved in the business of delivering courses or other services on behalf of a person that was the subject of regulatory action described in points b) or c) above, and if so, the relevance of the person’s involvement;
(g) whether the person has ever provided a VET Regulator with false or misleading information or made a false or misleading statement to a VET Regulator, and if so, whether it is reasonable to assume that the person knew that the statement made or information provided to the VET Regulator was false or misleading;
(h) whether the person has ever been determined not to be a fit and proper person as prescribed under any law of the Commonwealth or of a State or Territory of Australia, and if so, whether that determination remains in place;
(i)    whether the public is likely to have confidence in the person's suitability to be involved in an organisation that provides, assesses or issues nationally recognised qualifications;
(j)    whether the person has ever been an executive officer or high managerial agent of an RTO at a time that the RTO was determined to have breached a government training contract; and
(k)   any other relevant matter.
Power to cancel RTO registration
Section 39 of the NVR Act provides that ASQA may cancel an RTO’s registration “in any circumstances that the Regulator considers it appropriate to do so”.
ISSUES
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.
BACKGROUND
Scope 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.
On 7 September 2015, the Applicant applied to the Administrative Appeals Tribunal (AAT) for a review of ASQA’s previous decision to refuse its application for registration. The Applicant provided further rectification material to ASQA in the two months to follow. ASQA reviewed that further material and was not satisfied that the Applicant had rectified the previously identified non-compliances.
In May 2016, the Applicant provided further rectification material to ASQA including her training and assessment strategies (TASs). ASQA reviewed that further material and was satisfied that the Applicant had rectified all previously identified non-compliances. This prompted terms of agreement to be reached between ASQA and the Applicant in relation to the previous AAT review proceeding. The terms of agreement provided for the Applicant to be granted registration by ASQA for a period of four years.
Applicant has only ever issued qualifications to two students
Ms Galpin confirmed at the hearing that the Applicant has only ever issued qualifications to two students before it was audited by ASQA in August 2018. The Tribunal will refer to those students as Student BF and Student JV.
ASQA’s “post initial” audit – August 2018
On 8 August 2018, ASQA conducted a “post initial” audit to assess the Applicant’s compliance with the NVR Act and the Standards (2018 Audit). One point of focus of the 2018 Audit was to assess the implementation of the Applicant’s TASs, a matter which ASQA states it had put the Applicant on notice about during the initial registration process.
At the 2018 Audit, ASQA found the Applicant to be non-compliant with Clauses 1.1, 1.2, 1.3, 1.7, 1.8, 1.13, 1.16, 3.1, 4.1, 5.1 and 5.2 of the Standards.
Notice of intention to cancel registration – October 2018
On 29 October 2018, ASQA gave notice to the Applicant that the auditors had made findings of non-compliance with the Standards in certain areas; and of ASQA’s intention to cancel the Applicant’s registration under the NVR Act and/or to impose a sanction of lesser severity.[14] ASQA invited the Applicant to respond to ASQA’s stated concerns.
[14] Refer T-Documents at pages 423 to 425.
The Applicant’s initial response to concerns raised by ASQA – November 2018
The Applicant provided a written response and rectification evidence to ASQA on 13 November 2018 (Audit Response).[15] The Audit Response sought to address each of the auditors’ findings of non-compliance.
[15] Refer T-Documents at pages 426 to 514.
ASQA decided to cancel the Applicant’s registration – January 2019
ASQA considered the Audit Response and on 15 January 2019, gave written notice to the Applicant of its decision to cancel the registration of the Applicant with effect from 19 February 2019, citing the following reasons:[16]
[16] Refer T-Documents at pages 538 to 543.
Reason for the Decision
A compliance audit was undertaken of Maxine Elizabeth Galpin Pty Ltd (sic) (the RTO) on 8 August 2018 and the RTO was found to have failed to ensure the provision of quality Vocational Education and Training, which protects students and Australia's reputation domestically and internationally. The RTO had failed to meet the requirements of all the Standards for Registered Training Organisations (RTOs) 2015, specifically:
Marketing/Recruitment and Enrolment Practices:
·providing accurate and factual information about its services to prospective learners (Clauses 4.1, 5.1, 5.2).
Support and Progression Practices:
·establishing the needs of learners and facilitating access to appropriate support services (Clause 1.7).
Training and Assessment Practices:
·implementing training and assessment strategies and practices, including the amount of training, that are consistent with training package requirements for the training products on its scope of registration that enable each learner to meet the requirements for each unit of competency (Clauses 1.1, 1.2)
·having access to sufficient trainers and assessors for all of its scope of registration (Clause 1.3)
·implementing adequate assessment of students to ensure they are competent against all the requirements of the training product with regard to the training package requirements, the Principles of Assessment and the Rules of Evidence (Clause 1.8)
·ensuring trainers and assessors meet the requirements of the Standards (Clauses 1.13, 1.16).
Completion Practices:
·issuing AQF certification documentation only to learners who have met the requirements of the product as specified in the relevant training package or VET accredited course (Clause 3.1).
Ms Galpin sought review of ASQA’s cancellation decision – January 2020
On 31 January 2019, the Applicant lodged an application for review by this Tribunal.
Applicant engaged a VET sector consultant and auditor, Anthony Feagan
As mentioned above, the Applicant engaged a VET sector consultant and auditor, Mr Feagan, regarding the 2018 Audit undertaken by ASQA. Mr Feagan was provided with a copy of the 2018 Audit Report and Audit Response. Mr Feagan holds tertiary qualifications in the field of Further Education/Adult Education from the University of Southern Queensland and Charles Sturt University and is a registered lead auditor with Exemplar Global, an international certification body.
In Mr Feagan’s Affidavit, he stated that he attended the office of the AORA on 21 and 22 November 2019 and gathered evidence. Mr Feagan’s Report set out his general observations about the ASQA 2018 Audit as follows:
·     The non-compliances, overall, were of a minor nature.
·     Some of the matters recorded as non-compliant, should not have been.
·     It is difficult to understand how the level of non-compliance worsened from ‘serious’ to ‘critical’ between the first report dated 24/08/2018 and the one which reported the analysis of the rectification work dated 19/11/2018 given the lack of rectification evidence that was provided.
·     In light of the fact that the organisation only ever issued two qualifications, both to people who had extensive history in the equine industry, and that the report focussed on one student file which was a recognition of prior learning assessment, the decision to cancel the RTOs registration appears excessive and disproportionate.
The Applicant’s business plans
After some extensive inquiries, the following business plans of the Applicant were presented to the Tribunal:
(a)the first plan shows the year 2012 and has the University of Ballarat logo at the bottom of the document (2012 Business Plan);[17]
(b)the second plan shows the date 13 October 2014 (2014 Business Plan).[18] Ms Galpin said the 2014 Business Plan was sent to ASQA with the “viability plan” and this plan was compiled with support from a senior chartered accountant. Ms Galpin said the same accountant also prepared the cashflow statement for the Applicant which was attached; and
(c)Ms Galpin states that there was a third plan which was submitted to the ANZ Bank in about 2018. The third business plan was not produced to the Tribunal. Ms Galpin said she was unable to locate it.[19] Ms Galpin told the Tribunal the Applicant’s 2018/19 Business Cashflow Statement (Business Cashflow Statement) was attached to the third business plan.[20]
[17] Refer Exhibit “TDH1”.
[18] Ibid.
[19] Ibid at P-150.
[20] Ibid at P-155.
Evolution of the Applicant’s business and Ms Galpin’s personal background
During closing submissions, Ms Galpin gave evidence that her RTO was a “small business” and has been fully funded by her personally.
Ms Galpin agreed that her RTO had evolved in the way as indicated in the 2012 Business Plan being that while her core business was breeding and training thoroughbred horses for the racing industry, there had been an economic impact which had caused a reduction in the number of owners with money to invest in their passion and hobbies, and she had decided that “skill development and accredited training was the way forward”.[21] The Tribunal referred Ms Galpin to a section of the 2012 Business Plan which comprised a table listing the names and qualifications of several employees and the training outcomes that she was hoping those employees would achieve. When asked, Ms Galpin said that none of those employees remained working for the Applicant.
[21] Ibid at P-165.
During closing submissions, Ms Galpin gave evidence that:
(a)she would like the opportunity to refine some more “programs” and to “grow along slowly”;
(b)she did not believe that her vision could be brought forward without some refinement. She indicated that the Applicant was not expecting to be overwhelmed with the proposed 500 students as referred to in the business plan, and that the graph only represented “people of interest”, suggesting that the question of whether they could gain entry to the course was a different matter and “very important”;
(c)she would remove (the goal of enrolling 500 students) and that she wanted to be considered as a “small business with better infrastructure” and that she proposed to develop the Applicant’s technological capability by setting up a business telephone number, separate from her own, that would record any calls taken in relation to the RTO;
(d)writing diaries could “get very, very messy for me. My diaries are ridiculous. I have written diaries in the past and they have been put in even to stewards because, you know, how many rides you’ve done and they’re very messy records”;
(e)she would like her RTO to remain simple but with greater structure and she requested that the Tribunal “revert” the Decision under Review. Ms Galpin stated:
And the understanding of – I think you pointed out to me, Madam that I needed an underwriter, and I did have one when I went through university. As a matter of fact, I had two court stenographers because it’s not my strength…I come from a fully vocational background.
(f)she had required a stenographer because she did not have very good typing skills. Ms Galpin said she had changed careers from being a Master Certificate Hairdresser from age 15 onwards, after having left school at the age of 14. She said that she went to University to study and achieved a Diploma after she had fractured her neck. Ms Galpin said she would turn 60 in February 2021;[22] and
(g)Ms Galpin acknowledged there was room for improvement and while she was a fast reader, her literacy was not great. She referred to needing the support of Mr Feagan and a scribe, so that everything was recorded “to protect all parties”.[23]
[22] Ibid at P-170.
[23] Ibid at P-171.
CONSIDERATION
In reviewing the Decision under Review, the Tribunal will commence with a consideration of whether the Applicant has complied with the Standards.
The stated purposes of the Standards are as follows:[24]
Purpose
The purpose of these Standards is to:
1.set out the requirements that an organisation must meet in order to be an RTO;
2.ensure that training products delivered by RTOs meet the requirements of training packages or VET accredited courses, and have integrity for employment and further study; and
3.ensure RTOs operate ethically with due consideration of learners’ and enterprises’ needs.
[24] See Part 1 of the Standards.
“Training Package” is defined in the Standards as follows:
Training Package means the components of a training package endorsed by the Industry and Skills Council or its delegate in accordance with the Standards for Training Packages. The endorsed components of a Training Package are: units of competency; assessment requirements (associated with each unit of competency); qualifications; and credit arrangements. The endorsed components form part of the requirements that an RTO must meet under these Standards. A training package also consists of a non-endorsed, quality assured companion volume/s which contains industry advice to RTOs on different aspects of implementation.
In Mr Penna’s Second Affidavit, he stated that he had considered the evidence lodged by the Applicant in this proceeding and remained of the view that she had not rectified the identified non-compliances with some of the Standards as mentioned below.
Clause 1.1 – training and assessment strategies and practices
Clauses 1.8 and 3.1 – assessment systems
The Tribunal will address the allegation that the Applicant has not complied with Clauses 1.1, 1.8 and 3.1 together, as there is overlap between the factual circumstances relevant to the consideration of whether the Applicant is non-compliant with those clauses.
Firstly, ASQA alleges that the Applicant is non-compliant with Clause 1.1.
Clause 1.1, read in conjunction with Clause 1.2, imposes the following requirements on RTOs:
1.1.The RTO’s training and assessment strategies and practices, including the amount of training they provide, are consistent with the requirements of training packages and VET accredited courses and enable each learner to meet the requirements for each unit of competency or module in which they are enrolled.
1.2.For the purposes of Clause 1.1, the RTO determines the amount of training they provide to each learner with regard to:
a) the existing skills, knowledge and the experience of the learner;
b) the mode of delivery; and
c)where a full qualification is not being delivered, the number of units and/or modules being delivered as a proportion of the full qualification.
ASQA contends that the Applicant’s TASs and practices are not consistent with the requirements of the relevant training package, or its own policies and procedures, and would not have enabled the students to meet the requirements of each unit of competency.[25] Specifically, ASQA contends that:
(a)the Applicant did not implement her TASs for its qualifications falling under the now superseded RGR08 - Racing Training Package; and
(b)the Applicant has not developed TASs for the new RGR - Racing and Breeding Training Package.[26]
[25] Refer Evidence Analysis dated 29 January 2020.
[26] Refer paragraph [49.4] of ASQA’s SFIC.
Secondly, ASQA alleges that the Applicant is non-compliant with Clause 1.8. This Clause requires an RTO to have assessment systems in place to ensure compliance with the assessment requirements of the relevant training product, as specified in the training package for the relevant VET course. Under Clause 1.8, RTOs must conduct assessments in accordance with the Principles of Assessment contained in Table 1.8-1 and the Rules of Evidence contained in Table 1.8-2. ASQA contends that the Applicant has not demonstrated that it implemented an assessment system that meets both of those requirements.[27]
[27] Refer paragraph [49.6] of ASQA’s SFIC.
Thirdly, ASQA contends that the Applicant has not demonstrated how she will ensure that the Applicant will issue qualifications in compliance with Clause 3.1, in circumstances where the Applicant’s assessment systems do not comply with the Standards. To be compliant with Clause 3.1, an RTO must issue AQF certification documentation only to a learner whom it has assessed as meeting the requirements of the training products as specified in the relevant training package.
Information about entry requirements and mode of delivery
ASQA alleges that the Applicant’s TASs should have explained that an entry requirement for the Diploma of Racing (Racehorse Trainer) was that the prospective student had attained a Certificate IV in Racing (Racehorse Trainer). This contention was based on a statement in the training package that the candidate (for entry into the Diploma course) “must be able to demonstrate that they have the appropriate skills and knowledge commensurate with the RGR40108 Certificate IV in Racing (Racehorse Trainer)”.
The Applicant does not accept that this information needed to be included in the TASs. Mr Feagan contends that there is a difference between holding a qualification and being able to demonstrate commensurate skills and knowledge. He contends that the requirement specified in the training package was limited to the latter. The Tribunal agrees and accepts this contention.
The Applicant contends that the information in her TASs was correct. For instance, Mr Feagan states that the Applicant’s TASs had correctly referred to her courses being delivered using a “distance delivery mode”. Mr Feagan also states that under the heading “Workplace Involvement”, the Applicant’s TASs had correctly referred to the student’s work supervisor having a role in supporting the student in the workplace, by providing the Applicant with supporting evidence of the student’s work.
At the hearing, when asked who would perform the role of workplace supervisor of the Applicant’s students, Ms Galpin said that a trainer would do so, but if the student was performing a Certificate IV- or Diploma-level qualification, a veterinarian or someone in the industry akin to a steward would do so. She said the supervisor was to be more highly qualified than the student. She explained the importance of the students being supervised on account of them working with racehorses, citing “a golden rule of never working alone with a thoroughbred horse”.[28] This was so because of the risk involved to the person and the racehorse being a valuable asset. Mr Feagan contends that the Applicant had only permitted enrolment of persons already working in the industry and had ensured that the entry requirements in the training package were met, before enrolling a person into a Diploma-level course.
[28] Ibid at P-64.
The Tribunal is satisfied that the Applicant had an established approach of being appropriately selective when deciding who to enrol into her courses and that she applied high standards when doing so, by ensuring that a prospective student was working in the industry and could be supervised when undertaking the skills required under the relevant training package. This is commendable.
The Tribunal finds that ASQA’s allegation that the Applicant’s TASs contained incorrect information about entry requirements and mode of delivery is not made out. The Tribunal has disregarded this allegation when making its decision in this application.
TASs for the now superseded “Racehorse Trainer” courses not implemented
The evidence before the Tribunal revealed that the Applicant was initially reluctant to accept and implement the specific requirements of RGR08 - Racing Training Package for the now superseded “Racehorse Trainer” courses. The Tribunal finds that the source of this reluctance was Ms Galpin’s previous philosophical view that the requirements in the training package did not align sufficiently with the State-based licensing requirements. Therefore, Ms Galpin considered that some of those requirements were misplaced or unnecessary. Even when ASQA addressed this issue early on with Ms Galpin, the Tribunal finds that she was reluctant to put aside her philosophical views to ensure that the Applicant sufficiently assessed her students to verify that they had met those requirements.
This appeared to be a key issue for ASQA historically, and understandably so, as it was concerned that the Applicant was not willing to operate within the VET legislative framework as required by all RTOs. The Tribunal considers that ASQA’s concerns were well-founded, based on Ms Galpin’s philosophical views as expressed in early correspondence authored by her, which is in evidence before the Tribunal.[29]
[29] There are several documents before the Tribunal bearing out that Ms Galpin held those philosophical views previously, including her email and draft submission sent to Holding & Redlich on 30 August 2019, which Ms Galpin later produced to the Tribunal.

More recently, particularly based on the oral evidence Ms Galpin gave at the hearing of this application, the Tribunal is satisfied that the Applicant is now content with the new requirements forming part of the training package that has been developed for the New Courses. The Tribunal is satisfied that the Applicant is unlikely to continue to put up resistance to adopting and seeking to implement the requirements for the VET “Racehorse Trainer” courses, as contained in the training package for the New Courses. This is because Ms Galpin’s philosophical views seem to have changed considerably.
Applicant did not implement its own assessment policy
ASQA alleged that the Applicant did not provide evidence demonstrating that it had implemented its own assessment policy. This required the Applicant to obtain video footage of Student JV, one of two students to whom the Applicant delivered a VET course and issued qualifications whilst registered as an RTO, performing various tasks under assessment. There was an additional requirement that the Applicant obtain a copy of Student JV’s passport to verify his identity in the video. Mr Feagan sought to justify the Applicant’s divergence from her own assessment policy on the basis that the policy was written for a standard “enrol, train and assess scenario”, and the way it was written was restrictive, that is, the Applicant required the production of a student’s passport photograph to verify their identity when other identification documents could have been used to do so.
The Applicant admits that video evidence was not used in Student JV’s case in the assessment process. Ms Galpin said that instead, JV’s file contained numerous photographs of him working with horses to support the rest of the evidence that had been provided. Mr Feagan said that JV held racing licenses (dating back seven years which would have given Ms Galpin confidence that he had certain knowledge and had acquired certain skills leading to her bypassing some of the Applicant’s assessment policies and procedures). Mr Feagan said the issue of substance was that the Applicant had not documented the records of conversations that had taken place between Ms Galpin and Student JV. He points out there was evidence on Student JV’s student file held with the Applicant, comprising 30 email transactions and 26 telephone conversations. Mr Feagan submits that an assessment based on recognition of prior learning (RPL) required “more professional judgement by the assessor and that judgement is often not well documented. Given [Student JV]’s work experience and the extensive experience of the assessor, it seems clear, even to the layperson, that [Student JV] was suitably experienced to be issued the certificate”.
During cross-examination, Mr Feagan said he expected that there would be “alignment” between the requirements to obtain a trainer’s licence and the requirements of the training package to obtain a VET qualification as a trainer. His rationale for this was that the relevant licensing commission had provided input into the development of the VET training package. However, Mr Feagan accepted that it was necessary for the Applicant to have gone further than asking Student JV whether he held a trainer’s licence when she undertook his RPL assessment. Mr Feagan said the Applicant had not taken any extra steps, because there was “lots of other evidence on the file”. Mr Feagan described RPL as a system of collecting evidence, but he said how the evidence is collected may vary “depending on who the applicant is and what evidence they have got to provide to the assessor”.[30] Mr Feagan states that Student JV had submitted theory-based questions to the Applicant and there had been conversations between the Ms Galpin, Student JV and his supervisor.[31]
[30] Ibid at P-22.
[31] Ibid at P-20.
Mr Feagan said that it was not unreasonable to ask a student to provide a video if an assessor believed that it was required, but he pointed out that a lot of RPL assessments were done without calling for video evidence. When seeking to justify why the Applicant had not collected video footage in Student JV’s case, Mr Feagan said, “…it’s not always called for when you take into account the other evidence that you’ve got, with the fact that this chap has been doing it for some time, there were conversations with supervisors that he can do the job”. Mr Feagan said he understood that the racing industry was “fairly heavily regulated” and “I don’t believe you can get one of those licences unless you know what you’re doing. I don’t think they are given away too easily”.[32]
[32] Ibid at P-23.
Mr Feagan said he did not disagree that it was important that a precautionary approach be taken when issuing a VET qualification in the racing industry by calling for video footage.[33] But Mr Feagan said that RPL relied heavily on the assessor’s professional judgment, which was in a person’s head, and “not necessarily something that you would document in a dot-point format”. He said it was common among “lots of RTOs” that he dealt with, that assessors would make professional judgments without necessarily documenting everything. He said the evidence was “collected and seen” but may not necessarily be in written format.[34]
[33] Ibid at P-23.
[34] Ibid at P-24.
Mr Feagan said that he could not recall whether the Applicant had a documented procedure about how she would decide whether video evidence was required.[35] He said he recalled Ms Galpin mentioning that the students were working with horses in restricted areas. He could not recall whether she mentioned this in the context of why she had not sought video evidence from Student JV. Rather, he submitted that it should not be assumed that collecting video evidence in restricted areas was in fact possible, due to the restrictions that applied in those areas.[36]
[35] Ibid at P-24.
[36] Ibid at P-51.
The Tribunal has weighed up the evidence from both parties and is satisfied that when assessing Student JV, the Applicant has failed to comply with its own assessment procedures. The Applicant’s own procedures required her to obtain a copy of Student JV’s passport to verify his identity, while watching video footage of him handling horses to demonstrate that he possessed the practical skills required under the Applicant’s TASs. This did not take place. The Tribunal considers that when assessing whether Student JV possessed the required practical skills, the Applicant placed undue reliance upon the word of others and upon the fact that he had held a State-based licence for seven years. By doing so, the Applicant bypassed a substantive assessment process as required under the VET scheme. This gave rise to a risk that the Applicant had awarded a VET qualification to a person who may or may not possess the required practical skills. The Tribunal does not accept that this non-compliance was justified based on the matters raised by Mr Feagan. Accordingly, this factor weighed against the Tribunal making a decision that would, in effect, restore the Applicant’s registration as an RTO.
Applicant has not completed TASs for the two New Courses
ASQA alleges that the Applicant has not completed TASs for the two New Courses and therefore, the Applicant was not ready to deliver those courses. The New Courses were automatically added to the Applicant’s scope of registration on 5 July 2018. The 2018 Audit took place one month and a few days later (i.e. on 8 August 2018). The “teach out” period of the preceding courses has now expired as mentioned above.
Mr Penna confirmed that during the 2018 Audit, he had asked the Applicant for her TASs for the 2018 training packages (i.e. for the New Courses). Given that the New Courses were specified as being “equivalent” courses to the previous racing courses, Mr Penna said that ASQA had expected that the Applicant would be aware that there were some changes about to be released and that she had some sort of strategy or plan in place to review and revise her existing racing courses and TASs.
Ms Galpin said she had begun work on preparing the TASs for the New Courses and had “brought on board” the auditor and various people that could help her “through the constraints of the package”.[37]
[37] Ibid at P-83.
Ms Galpin put to Mr Penna, during cross-examination, that the Applicant had received an email on 4 July 2018 (about one month before the 2018 Audit), informing the Applicant that there had been changes to the package and the Applicant had 12 months to implement these changes. Ms Galpin said she had spoken to Ms Michelle Inglis from Skills Impact about the new package and that she was aware of how long she had to “put the new package together”.
Mr Penna stated that when he audited the Applicant, there was no evidence that she was ready to deliver the new qualifications and that this was also the case in November 2018 when the Applicant submitted her response to the initial audit. This was in spite of the fact that ASQA identified the absence of such materials was an issue.[38] Ms Galpin asserted that all RTOs delivering that course had not accomplished this, and that many of them had asked for a 12-month extension. There was no evidence presented to the Tribunal to support this assertion of fact. Ms Galpin said she was not made aware of the change until 4 July 2018.[39]
[38] Ibid at P-141.
[39] Ibid at P-142.
When Ms Galpin was asked by the Tribunal at the hearing whether the Applicant had completed the training materials and assessment tools for the New Courses, she said she had not. When asked whether she had started them, she provided the following explanation which did not instil confidence in the Tribunal that any significant progress had been made to attend to the preparation of the Applicant’s TASs and other training and assessment materials for the New Courses:
Due to the cancellation and time that it’s consumed; I’ve spent a lot of time reading over the material. At the time when, you know, you’re going through the formatting of it all and we worked with RTO services I found than, you know, tired eyes don’t pick up detail.
Ms Galpin said the Applicant had over $60,000 available to her to pay the auditor to settle the training materials and assessment tools. She also said she had access to a further $150,000 of family money and $70,000 in other assets. Ms Galpin claimed that she was very close to being set up and ready to go. At the hearing, she said the draft materials for the New Courses could be sent off to Mr Feagan “tonight”. The Tribunal is not satisfied this is correct because if it were, Ms Galpin would have produced them before the substantive hearing, to demonstrate her readiness to deliver the New Courses.
When asked whether the Applicant had purchased the TASs for the New Courses (as an alternative to developing them herself), Ms Galpin indicated her belief that they were not available for purchase. She conceded that she had not looked at whether the TASs were available for purchase in the previous three months. Ms Galpin stated that she would have to develop the TASs herself. Ms Galpin described them as “nearly fully done and that a lot of it was new naming and some enhancements that needed to take place.” Ms Galpin said she had submitted some to Mr Feagan and that she was not prepared to “do anything without it being taken through the auditor”.[40] Ms Galpin said she would submit the entire training package to Mr Feagan. When asked whether Ms Galpin had submitted the drafts of the TASs to the Tribunal in this application, she said she had not.[41]
[40] Ibid at P-86.
[41] Ibid at P-87.
During cross-examination, Mr Feagan said he had informed Ms Galpin that the Applicant must focus on the training package. During cross-examination, he said that quite a bit of work had already been done by the Applicant on the new version of the training package. He said that Ms Galpin had told him when he left the property that they would continue to work together. He said he was not aware whether the Applicant had prepared the new TASs for the training packages for the New Courses. He said Ms Galpin had committed to working with him and would seek his advice in future regarding the collection of evidence, the design of documents and the way to record things.[42] Mr Feagan told the Tribunal that there was no retainer in place, but he could probably find an email which referred to their intention to work together in the future.[43] During re-examination, Mr Feagan confirmed that Ms Galpin had made a request of him to be the Applicant’s “auditor”.[44]
[42] Refer Transcript P-54.
[43] Ibid at P-54.
[44] Ibid at P-55.
ASQA asked Ms Galpin at the hearing whether she considered it acceptable that there was a two-and-a-half-year delay between the commencement of the New Courses and the Applicant having the new training materials ready. Ms Galpin said she could not answer that question “because of the cancellation” and for the Applicant “to prepare and invest fully”, she said this “could not be considered without a decision”. She also maintained that it was “very close to be being done”, that it had not (yet) been audited by Mr Feagan and she would have to timetable for Mr Feagan to go over the materials before presenting them to ASQA.[45]
[45] Ibid at P-90.
Mr Feagan suggested that an RTO has 12 months from the date of succession of a course to complete the training and assessment for its enrolled students for that course, so the same transition period should be applied to an RTO with respect to “transitioning its documentation”. For this reason, Mr Feagan considers the non-compliance identified by ASQA as “harsh”.
The Tribunal understands why the Applicant and Mr Feagan perceive the approach of ASQA as described in the above paragraph as being “harsh”. However, the Tribunal notes that by the end of the substantive hearing, the Applicant still had not prepared and finalised her TASs and/or training and assessment tools for the New Courses. This means that the Applicant is currently not able to deliver those courses if she were registered to do so. This causes the Tribunal significant concern. The Tribunal accepts ASQA’s criticism of the Applicant that she could have submitted those completed materials at or before the hearing of this application. The Applicant’s explanation as to why she had not done so, reflected a reluctance to take that step or to invest in doing the work necessary to finalise those materials before knowing the outcome of this application and whether the Applicant’s registration would be reinstated.
With all due respect to the Applicant, the Tribunal considers her approach regarding this issue reflects a lack of understanding about the obligations of an RTO when delivering nationally recognised VET qualifications. It demonstrates an approach by the Applicant which fails to recognise that an RTO operates within a stringent and highly structured self-regulatory regime. Registration is granted to a training organisation on the basis that it can demonstrate compliance with all of the Standards and that it is prepared, and immediately ready, to deliver courses as from the commencement of its registration (and not at some point in the future).
The Tribunal acknowledges Ms Galpin’s claim that it would not take her very long to finalise her training and assessment materials for the New Courses. Even if she were correct about this, the fact remains that there are no drafts of the Applicant’s TASs, or any other training and assessment materials for the New Courses before the Tribunal. The Tribunal does not accept Ms Galpin’s justifications for why they have not been finalised.
Accordingly, the Tribunal finds that the Applicant is not ready to deliver the New Courses if her registration was to be restored, meaning the Applicant would be non-compliant with Clause 1.1 and 1.8 of the Standards. The Tribunal considers that the TASs for the New Courses and the associated training and assessment materials should have been finalised by the Applicant prior to the substantive hearing of the application or immediately after ASQA first raised those matters with Ms Galpin during the 2018 Audit. This has not occurred.
The Tribunal considers that this factor weighs heavily against restoring the Applicant’s registration.
Inadequate training and assessment practices for theoretical components
Regarding the theoretical components of the Applicant’s courses, Mr Varley points out that it was the Applicant’s practice to send written materials to learners who would complete and return them. He referred to the Applicant’s learner guide sent to Student JV (Learner Guide). Mr Varley contends that it was clear that Student JV had copied and pasted his answers from the Learner Guide. Mr Varley contended that in the assessment completed by Student JV, at least one of his answers was incorrect. Mr Varley pointed out that ASQA was not suggesting that the Decision Under Review should be affirmed merely because one learner answered a question incorrectly. However, he contends that this example demonstrated there was a flaw in the Applicant’s assessment systems.
By reference to the Rules of Evidence at Table 1.8-2 of the Standards, Mr Varley contends that the evidence collected was not necessarily valid, because copying and pasting did not ensure the learner had acquired the required knowledge. He contends the evidence collected by the Applicant was not necessarily sufficient, because the quality was not good enough to enable a judgment to be made of the learner’s competence.
Mr Varley contends that the other difficulty with the Learner Guide was that there were no model answers. Mr Feagan acknowledged this.[46] Mr Varley contends there was some evidence that Ms Galpin was the only assessor and for that reason, a lack of model answers had a limited impact in the Applicant’s circumstances. However, Mr Varley contends that the Principles of Assessment in the Standards require that the assessment be reliable. Mr Varley argued that meant there should be a documented system to ensure Ms Galpin could interpret the evidence consistently between models, particularly if she was proposing to expand her operations significantly. ASQA acknowledged at the hearing that Ms Galpin seemed to have abandoned her previously documented proposal for expansion of the Applicant’s operations such that she would have 500 enrolled students.
[46] Refer page 9 of Mr Feagan’s Affidavit in the combined report.
During cross-examination, Mr Varley referred Ms Galpin to Student JV’s answers to the questions contained in Applicant’s Learner Guide for the unit, “Attend horses at race meetings and trials”. Ms Galpin agreed that she had assessed Student JV’s competence for that unit, in part, based on his answers, and she thought they were of a “high standard” for a student. Ms Galpin conceded that Student JV’s answer to question 1 could have been more prescriptive, but she said he was correct. In question 1, Student JV was asked to list the gear that must be taken to a race meeting. He provided an answer that the horse should be groomed lightly by giving it a quick wipe down. When asked what that had to do with listing the gear, Ms Galpin answered as follows:[47]
Well, firstly, he’d only be responsible with what the trainer told him to take, so he’d be doing what the trainer told him to do, and that gear is actually the horse, and he’s taken a wipe. I think – look, it’s not ideal, I agree with [Mr Varley] but he did make a very specific answer, and that’s what he obviously does, and to extend that, it becomes very complicated. Some trainers would expect bags of equipment to come in. Most trainers will just take a bridle and the horse, because the shoes are already on there. They wouldn’t have bags of bandages, they wouldn’t have an enormous amount of polish, it’s all done prior to going to the race meeting.
[47] Ibid at P-95 and P-96.
Ms Galpin also explained that one needed to look at his answers overall and that there “would’ve been a discussion over that answer because most of his answers were a hundred per cent”. There was no documentary evidence before the Tribunal evidencing the discussion that took place between them. Ms Galpin said she could ascertain that Student JV was a “near perfect employee” and “he had a perfect record”.[48]
[48] Ibid at P-96.

Mr Feagan accepted that in respect of the theory components of the Applicant’s RPL assessment, Student JV did not provide an answer to the question “List the gear that you must prepare and take to a race meeting” that covered the list of gear that must be taken to a race meeting.[49] When asked about Student JV cutting and pasting information from the Learner Guide as an answer to an assessment question, Mr Feagan conceded that this “was not ideal” but he pointed out that this was common when an open book style of assessment was allowed.[50]
[49] Ibid at P-33.
[50] Ibid at P-33.
When asked whether Mr Feagan considered that assessors should require a relatively high standard of evidence of finding someone competent in an industry like horse racing, he said he was not comfortable with the word “high”. He said, “evidence was evidence” and that the evidence had to meet the training package requirements. Again, he came back to the fact that Student JV had worked in the horse racing industry for a long time. For this reason, Mr Feagan asserted “…it’s clear he can do his job otherwise he wouldn’t hold the job” and that “if he turns up for a race meeting every X amount of weeks and he remembers to take all the right gear with him, and he does it year after year”. When asked by the Tribunal how he would know that for sure, Mr Feagan accepted that he did not, but he restated that in the Applicant’s case there had been “lots of telephone conversations that backwards and forwards here and there. Without those being written down I don’t know what was asked, obviously. That’s the … challenge we face, you know, with people using their professional judgment and – and this is a very common thing”.[51]
[51] Refer Transcript P-34.
When assessing Student JV, the Applicant admits that she did not have a clear set of model answers or assessment benchmarks for each question in the assessments. Mr Feagan explained that Ms Galpin was the only assessor for the Applicant, and this was intended to be the case going forward. Mr Feagan submits “Given her extensive experience in this industry, it is reasonable to conclude that her ability to consistently determine whether a student answers a question correctly should, arguably, not be challenged”. Mr Feagan challenged ASQA’s suggestion that Student JV had answered one of the questions identified by ASQA incorrectly and contends that Student JV had answered it in more detail than was required, that it was correct and “certainly sufficient”. The Tribunal disagrees and does not accept Mr Feagan’s suggestion in this regard. As evident from the face of the question and answer, Student JV misunderstood and did not answer the question asked of him.
Mr Feagan confirmed at the hearing that the template RPL assessment toolkit that the Applicant had produced, remained as a template and had not been populated by the Applicant. He added that there was no obligation in the Standards for an RTO to have an RPL assessment tool.[52] Mr Feagan stated that as part of his internal review of the Applicant one year ago, there were some new assessment tools in development. He also said that when there is only one assessor in an RTO, reliability of assessments is much better because it is “the same person’s judgment” and the necessity to have detailed marking criteria was less. He agreed with a suggestion put to him during the hearing, that if there was more than one assessor to work for the Applicant, there would be a greater need for model answers for the assessment tools.[53]
[52] Ibid at P-38.
[53] Ibid at P-43 and P-44.
At the hearing, Ms Galpin agreed with a proposition put to her that an RTO delivering a nationally accredited VET course brought with it, its own legislative regime with its set of requirements and rules and that those requirements should be the “first thing in the spotlight”. She responded that while there might be some overlap with a State-based licensing system, she agreed with this proposition. Ms Galpin pointed out that the two systems needed to marry up, because “the end product of the national package still has to get somebody a job in the industry”.[54]
[54] Ibid at P-57.
Ms Galpin assured the Tribunal that she was “completely committed” to ensuring that the training package informed the way the Applicant delivered her training and assessment. She said that this had been a learning process for her, in terms of how to operate an RTO.[55]
[55] Ibid at P-57 and P-58.
The Tribunal considers that there are significant weaknesses in the practices that have been adopted by the Applicant to date, in assessing the theoretical components of the courses. The answer provided by Student JV, as highlighted by Mr Varley, was clearly incorrect and another revealed a “cut and paste” approach by the student, using information provided in the Learner Guide. The Tribunal accepts ASQA’s contention that this approach does not sufficiently test whether the learner has acquired and retained knowledge of the matters about which they were being assessed. Of greater significance was the absence of any model answers, reflecting that the Applicant’s assessment systems were not sufficiently structured and were incomplete. This situation could lead to inconsistences and errors when assessing students, if not remedied.
The Tribunal acknowledges that Ms Galpin appears committed to bringing those matters into order. However, at the present time, the Applicant’s training and assessment practices for the theoretical components of its courses are non-compliant with Clause 1.8 of the Standards, and this weighs against restoration of the Applicant’s registration.
Inadequate training and assessment practices for skills component
Mr Varley, on behalf of ASQA, highlights that in order to certify that a learner has met the requirements of a training package, the Applicant must consider each of the skills specified in the units of competency that make up the training package. Mr Feagan acknowledged during cross-examination that an RTO’s assessments must comply with the Rules of Evidence and Principles of Assessment.
ASQA alleges that the Applicant’s assessment tools do not establish a process to gather sufficient evidence to confirm competency against all aspects of the units of competency (first allegation). ASQA further notes with concern that the Applicant’s assessment tools do not require the Applicant to reach a formal arrangement with the learners’ employers, to define a plan for the VET training and assessment, to establish timelines and to set out the roles and responsibilities of each (second allegation).
In relation to the second allegation, Mr Feagan’s response was that the requirements expected by ASQA as set out in its audit report exceeded the requirements of the Standards. He did not consider that there was any requirement for an RTO to have a written agreement in place with a student’s workplace supervisor. He said that in the case of the Applicant, these arrangements were established over the telephone. Mr Feagan accepted that what the Applicant “did not do well” was to document the outcome of those conversations and that the Applicant would agree to enhance this evidence-gathering mechanism in future.
In support of the first allegation, ASQA relied upon evidence in relation to the assessment of Student JV. Mr Feagan said that the Applicant had documented the theory side of Student JV’s RPL assessment, but he conceded that the practical (skills) side of the assessment was “not documented as well as it could have been”.[56] Mr Feagan accepted that the Applicant did not document whether Student JV had a series of skills in one of the units which Mr Varley took Mr Feagan to, during cross examination.[57]
[56] Ibid at P-25.
[57] Ibid at P-30.
Ms Galpin gave evidence that when assessing Student JV, Ms Galpin used a tool that she had downloaded from the racing commission. She also said she had spoken to three people from the commission who informed her that Student JV had an impeccable record and that he had never received a fine.[58] Ms Galpin said that if a person has been given permission to ride a racehorse on a racetrack, it is standard procedure in the industry that that person must have obtained both medical and police clearances and that they have also been cleared by a steward and a trainer who have assessed the person’s skills.[59]
[58] Ibid at P-37.
[59] Ibid at P-70.
When referring to her approach to the task of assessing Student JV, she stated as follows:[60]
…when someone’s working in an environment and on the job training, it’s very clear what they’re doing, they’re simple tasks. The objective of it is that they’re demonstrating that they can do the task. People are telling me that they can do the task, and I’m checking up that he can do the task. I’m there as an assessor only. I did my job.
[60] Ibid at P-96.
Ms Galpin conceded that her record-keeping “could be made better”. She said “But for making a ledger for every phone call and to keep, you know, keeping a diary or a log, yes, I believe that the infrastructure of purchasing a recorded message device that could pick up the phone instead of, you know, so that everything was recorded”. She said she should also keep a hard copy of her emails.[61] She said that this was not apparent to her when she was working with Student JV and that no one had brought it up. Further, she contends she had employed professional people and paid them fairly large amounts to point this out to her.[62] She accepted that as the CEO she was responsible for her RTO and she “figured” that the phone records and collections of emails would have been sufficient to assess Student JV. She claims that she had questioned Student JV and his trainer over each of the 19 full theory units. She said she had called the Queensland Racing Commission on more than one occasion and received letters from them endorsing Student JV’s experience. She said they also sent her his full profile and records.
[61] Ibid at P-96 and P-97.
[62] Ibid at P-97.
It was put to Ms Galpin by Mr Varley that she was required to make a record demonstrating which piece of evidence she had relied upon to be satisfied that Student JV had each of the skills required for the units. Ms Galpin responded as follows, explaining that she was relying upon the student’s supervisors to be signing off that they had each of the skills required:[63]
So an RPO document was brought forward, and yes, there’s – I am perplexed because the record or logbook, which you would like signed off and signatured, didn’t realise the amount of time that a trainer has to give. Yes, he’s there, yes, he’s being supervised. When I did 17 students for Ballarat University I put 17 apprentices through Certificate II, III, IV and V and assessment. I reckon I signed my signature at least a thousand times per student. I was training horses at the time, I wasn’t in the position of an RTO. I asked that [Student JV]’s material was signed off on by a second. I asked that [Student BF]’s material was signed off by a second before I viewed it. So they basically swore that somebody else had done it within that infrastructure so - -
[63] Ibid at P-98.
Ms Galpin said she had asked the supervisors by telephone to sign off on those matters.[64] She claimed to have taken a note of when she made such requests but when asked why she had not produced them to the Tribunal, she said she did not do so because the amount of documents were “massive”.
[64] Ibid at P-99.
In respect of the two students who had been enrolled by the Applicant, Ms Galpin said she did not require a video for each unit because “a vet signed off on some of the portfolios” and that Student BF was “fully accredited and certificated” (as a jumps trainer). She said that Student BF answered some questions for a unit and that they had to understand the theory of that unit. Further, Ms Galpin said:[65]
…but the thing is that I don’t require a video of everything because the stewards have already passed them. There would have to be video evidence that would exist without – they wouldn’t have been accredited…
[65] Ibid at P-70.
When asked, Ms Galpin said she did not collect a training log for every student for every unit.[66] At the hearing, Ms Galpin explained that Student BF was awarded a Diploma of Racing (Racehorse Trainer) and had been promoted to work for the principal licensing body in New Zealand.[67]
[66] Ibid at P-71.
[67] Ibid at P-65.
Mr Varley contends that the difficulties with the Applicant’s assessment systems in respect of assessing practical skills, was that Ms Galpin did not adopt any policy or procedure for RPL. He contends that the Applicant’s practice was “very unstructured” and that she did not document the evidence that she had collected. Mr Feagan and Ms Galpin conceded that the documentation of such matters was not as good as it could have been.[68] ASQA contends that the consequence of the Applicant failing to document the evidence collected was that her assessments were unreliable, in the sense that the results could not be compared irrespective of the assessor.
[68] Refer page 10 of Mr Feagan’s report and concessions made by Ms Galpin at the hearing.
The Applicant put forward to ASQA (and in turn, the Tribunal) an RPL kit issued by the Western Australian government.[69] ASQA contends that this type of kit would have been an appropriate type of tool for an RTO, like the Applicant, to use when undertaking an RPL assessment. By contrast, ASQA invited the Tribunal to consider that the kit provided by the Applicant was still a template. It had not been customised by the Applicant and as such, was not yet ready to be used as an RPL assessment tool. ASQA contends that the contrast between the Applicant’s actual procedures (carried out without using any such tool) and the procedures as referred to in the Western Australian template, reveal the flaws in the Applicant’s general approach to RPL assessments.
[69] Refer page 522 page of the Applicant’s Tender Bundle.
Ms Galpin suggested that it was unfair of ASQA to have measured the extent of the Applicant’s compliance with the Standards by reference to a qualification that had been granted by way of an RPL assessment. The Tribunal does not agree that this approach by ASQA was unfair because Ms Galpin’s evidence revealed that she applied stringent enrolment requirements and would only accept prospective students who were working in the industry and could be supervised in a workplace. The Tribunal considers that given those stringent requirements, there is every chance that a student enrolled by the Applicant may well be assessed under an RPL assessment approach. Some may already hold State-based training licences and are seeking to obtain formal nationally accredited qualifications in recognition of the practical skills they may have possessed for some time, as was the case with Student JV. There was no evidence to support a conclusion that Student JV is not representative of a typical student that the Applicant is likely to enrol to undertake one of her courses.
For this reason, the Tribunal considers that it was important for the Applicant to have embedded sufficient RPL assessment tools in her assessment systems right from the outset. This would have ensured a structured approach to all RPL assessments the Applicant undertook before granting any of its students a VET qualification.
During cross-examination, Mr Feagan was taken to a template RPL assessment toolkit that had been developed by the Department of Training and Workplace Development. He was asked whether the style of asking verbal questions as specified in advance in the template RPL assessment toolkit, was a well-established way of performing an RPL assessment. Mr Feagan said it was not well-established and while it was one way of conducting an RPL assessment, there were other ways. He said that an assessor needs to decide how he or she is going to collect the evidence and that he had worked with many RTOs who had conversations with people and took notes of those conversations. Mr Feagan said that he did not recall if the Applicant had a document, like the template RPL assessment toolkit, where she would ask questions for each unit of competency.[70]
[70] Refer Transcript at P-31.
Mr Feagan contends that there was no formal obligation on an RTO to develop and use an RPL assessment tool. Even if the Tribunal were to accept that contention, the Tribunal considers that the actual RPL assessment practices adopted by the Applicant in Student JV’s case were insufficient. The Tribunal finds that, at the very least, the Applicant should have required Student JV to have submitted video footage when seeking to demonstrate to the Applicant that he had the necessary practical skills to meet the requirements of the training package and each unit of competency within the course he was undertaking, especially when it came to working directly with a racehorse. Student JV submitted photographic evidence of his skills to Ms Galpin, but the Tribunal agrees with ASQA that this is insufficient to show that he possessed the required practical skills. With respect, it reflects poorly on Ms Galpin’s judgment as an assessor that she considered this type of evidence to be satisfactory, in the absence of any video footage.
The Tribunal finds that there was insufficient documentation of the Applicant’s assessment of Student JV. At the hearing and to her credit, Ms Galpin conceded that improvements needed to be made. Going forward, she said she would be relying upon Mr Feagan to assist her to close the gaps on those matters, particularly when it came documenting the Applicant’s assessments and collecting evidence to verify the student’s skills. To date, there is no formal engagement of Mr Feagan. The Applicant has not secured additional personnel within her training organisation that would give the Tribunal confidence that there will be improvement of these matters going forward. Ms Galpin’s own evidence, consistent with Mr Feagan’s evidence, is that there is no retainer in place. At best, there is only an in-principle verbal arrangement with Mr Feagan that he will be asked to assist her into the future. Those arrangements are not concrete, and the Tribunal considers that the Applicant’s actions to date to rectify this issue are insufficient.
The Tribunal considers that this factor weighs against restoring the Applicant’s registration as an RTO.
Applicant’s Information Guides
Mr Varley on behalf of ASQA contends that information provided in the Applicant’s information guides (Information Guides) “to the extent that they were part of the Applicant’s training and assessment strategy”, would not have complied with Clause 1.1 of the Standards, because they did not meet the requirements of the training package.
Specifically, Mr Varley contends that the difficulty with the Introduction Guides was apparent when comparing them to the Applicant’s full TASs found at T-Document T10. He contends that by contrast, the Applicant’s formal TASs outline the resources to which the learners are required to have access, and the assessment techniques, unit by unit.[71] Mr Varley contends that it was apparent from the now superseded training package for RGR08 - Racing Training Package (against which people like Student JV were assessed), that a student required certain resources in order to complete the requirements of the training package. This included horse ropes, race gear, personal protective equipment and other such things. Mr Varley contends that it may have been that every thoroughbred trainer would have access to those materials/resources, as Ms Galpin suggested. But it was equally important that the material the Applicant disseminated, including her TASs, made it clear that those resources would need to be accessible, so that the learners and their workplace supervisors understood this. Mr Varley contends that for that reason, the Introduction Guides would not have enabled the learner to meet the requirements of the training package.
[71] Refer T-documents at page 186.

Mr Feagan said it would be relatively straightforward to remedy the errors that had been identified by ASQA regarding the issuing of testamurs. Mr Feagan explained that due to the cancellation of the Applicant’s registration, the Applicant did not have access to the system to enable her to withdraw the qualification and to re-issue it. This was a process normally available to RTOs when such errors are made. In closing submissions, Ms Galpin said she would like the opportunity to rectify Student JV’s qualification certificate. She admitted that the Applicant’s certificates had become “messy” which she put down to “ill-advisement”. She said she was grateful this had been made clear to her. Ms Galpin said her original templates were “much better”.
The Tribunal finds that there were indisputable errors in the testamurs that have been issued by the Applicant during her period of registration and the certificate issued to Student JV which requires reissuing. The Tribunal finds that the Applicant did not comply with Clause 3.2 during her period of registration. This was not in dispute, either by the Ms Galpin or Mr Feagan. They assert that this non-compliance is easy for the Applicant to remedy.
The Tribunal agrees and considers that it likely that those minor matters would be remedied quickly enough if the Applicant’s registration restored. For this reason, the Tribunal has not taken the minor non-compliances with Clause 3.2 into account when making its decision in this application.
Clauses 4.1, 5.1 and 5.2 – marketing, recruitment and enrolment practices
These clauses establish requirements for RTOs to provide current and accurate information about its services to prospective learners.
Clause 4.1 requires that information disseminated by RTOs must be accurate and factual (among other things) and that it:
(a)includes the RTO’s code;
(b)accurately represents the services it provides and the training products on its scope of registration; and
(c)includes the code and title of any training product it delivers, as published on the National Register.
Clause 5.1 requires that an RTO is to provide advice to a prospective learner, before enrolment or commencement of their training (whichever occurs first), about the training product most appropriate to meet the learner’s needs after considering their individual existing skills and competencies.
Clause 5.2 prescribes further information about which RTOs must advise prospective learners. This information will enable the learner to make an informed decision about undertaking training with the RTO.
ASQA contends that the Applicant has not demonstrated that information she disseminated was or would be “accurate and factual”. Mr Penna attached to his affidavit an Evidence Analysis recording his findings as at 29 January 2020;
(a)in respect of Clauses 4.1 and 5.2, Mr Penna considered that the Applicant had disabled her website. While this had rectified the issues identified at audit, Mr Penna considered no evidence had been provided to demonstrate that the Applicant’s marketing information or other information that enables a prospective learner to make informed decisions about training with the RTO was accurate and factual. Further, Mr Penna contends there was no evidence that a process would be followed to ensure such information developed in future would comply with those Clauses; and
(b)in respect of Clause 5.1, Mr Penna considers that no evidence has been provided by the Applicant of a compliant process followed to enrol Student JV, or of a process that would determine the status of future applicants. Clause 5.1 requires an RTO to provide advice to prospective learners about the training product appropriate to meeting the learner’s needs. Those needs would not be met if the student was an overseas student, because the Applicant is not registered under the Education Services for Overseas Students Act 2000 (Cth) (ESOS Act) to deliver courses to overseas students. ASQA contends that the Applicant has not demonstrated that it implements a policy and procedure to ensure appropriate advice is provided to learners.[81] The Applicant has provided affidavit evidence by Mr Feagan to the effect that Student JV was appropriately enrolled. However, ASQA contends that this evidence does not demonstrate that the Applicant had evidence to satisfy herself about his status as an overseas or domestic student, prior to Student JV’s enrolment or commencement of his training.
[81] Refer paragraph [49.2] of ASQA’s SFIC.
First, the Tribunal will address Clause 5.1.
The Applicant did not have a system to ensure that students who held visas were given appropriate advice about their eligibility to enrol, as emerging from the case of Student JV. He was born in Colombia as referred to on his enrolment form. ASQA contends that there were questions about whether he was an Australian citizen or a visa holder. If he was a visa holder, ASQA contended there were questions as to whether he had held a visa that entitled him to enrol as a domestic student or whether he needed to enrol with a CRICOS provider under the ESOS Act. ASQA acknowledged that Mr Feagan had given evidence to establish that Student JV was entitled to enrol and ASQA did not dispute that was the case. However, ASQA contends that there was no system or practice that would reliably ensure that those issues were picked up at the time of enrolment of learners with the Applicant. ASQA contends that this meant there was no system or practice in place for ensuring learners in Student JV’s position were given advice in accordance with Clauses 5.1 and 5.2 of the Standards.
At the hearing, Ms Galpin was asked by Mr Varley whether at the time she enrolled Student JV she had considered whether his visa entitled him to enrol with the Applicant. She said she did not see which visa he was on, but she was aware that he was not on a student visa. Ms Galpin said that she thought she had seen documents from the racing commission which had stated he was a horse trainer.
Ms Galpin refuted that the Applicant did not have a system to check whether prospective students were entitled to enrol under the terms of their visas. She said she had questioned Student JV and spoke to him at length. She said he was already fully equipped with a Level IV horse trainer recognition. Ms Galpin said that the Applicant’s system was that she relied on the USI, the information from the racing commission, and on Student JV himself. Ms Galpin said she considered this to be adequate, claiming that the USI would have declared his visa position. When asked whether the Applicant had a policy about this, were it to commence operating as an RTO tomorrow, Ms Galpin said she was “quite sure there is something there” because she had very extensive policies (56 of them) and they were to “a university standard”.[82]
[82] Refer Transcript at P-93.
During cross-examination, Mr Feagan said he did not know whether Ms Galpin had considered Student JV’s visa status at the time of enrolment. He considered it reasonable for her to have concluded that he was not on a student visa, as he had been working in Australia for seven years. He expressed the following opinion:[83]
It is not a matter of checking to see that they have an appropriate visa. It is a matter of checking to see that they are not on a 570 series visa. Even though, interestingly, that is not a standard question that the government set. There are a serious (sic) of questions that one must put on an enrolment form, and that question is not one of the questions, surprisingly. You would think it would be. So you look at how the student answers the rest of the questions, and based on that, you determine whether they are likely to be an international student or not. That is how all RTOs do it. RTOs don’t necessarily have a procedure for that, typically. But if the student is – you know, there is a question on there, you know, where are you from? I’m from so and so. How long have you been in Australia? From however long it might be. What do you do for a living? When you combine all those things, you can usually form an opinion as to whether they’re an international student or whether they’re potentially an international student.
[83] Ibid at P-18.
The Tribunal does not accept Ms Galpin’s contentions and Mr Feagan’s views about this issue. In order to ensure that an RTO does not contravene the legislative requirements of the ESOS Act by enrolling an overseas student without obtaining CRICOS registration,[84] it is critically important for them to ascertain with certainty the status of a prospective student (i.e. whether they are an overseas or domestic student) prior to enrolment. The Tribunal considers that the Applicant’s approach was to make assumptions about the visa status of Student JV, instead of verifying his precise status by reference to a passport and any visas he held. Irrespective of whether those assumptions were reasonable or not, the Tribunal considers that it was incumbent upon the Applicant to have adopted a more rigorous process than it did, to establish such matters. On this basis, the Tribunal finds that the Applicant is non-compliant with Clause 5.1.
[84] Refer s 8 of the ESOS Act.
The Tribunal notes that Mr Feagan appeared supportive of an approach of determining such matters by looking at external factors rather than seeking appropriate verifying documentation. Further, the Applicant did not refer to any specific written procedure which would give the Tribunal confidence that this situation would not occur in the future.
Next, the Tribunal will address Clauses 4.1 and 5.2.
At the hearing, Mr Varley on behalf of ASQA contends that information provided in the Applicant’s Information Guides was not accurate and factual for reasons including that the Guides did not identify that:
(a)the Applicant required its students to be over 18 years of age; and
(b)the Applicant had a process for checking aptitude for study before enrolling prospective students.
The Tribunal was less concerned about those matters because if either of those circumstances applied to a prospective student, it was likely to lead to them not being accepted for enrolment with the Applicant.
At the hearing, Mr Varley also referred Ms Galpin to the Applicant’s student induction and orientation document. Specifically, reference was made to the fact that this document contained a reference to “Federation Training” even though it was the Applicant’s document. Ms Galpin conceded that she had used some material from another RTO by the name of Federation Training as a guide, but that she had “not fully copied from it”. Ms Galpin said that documents were “interchangeable”, but she refuted that the document was a “Federation Training” document. Ms Galpin conceded that the reference in this document to the “Electricity Supply Industry Code of Practice” should not have been included. Mr Varley also pointed out a reference in this document to the Applicant’s “Policy Unit” and put to Ms Galpin that the Applicant did not have such a unit. Ms Galpin stated that while there were no designated personnel, that the Applicant had 56 policies and the student could have any of those policies and procedures.[85] Eventually, Ms Galpin accepted that she had used the Federation Training document “as a template”.[86]
[85] Refer Transcript Ibid at P-104 and P-105.
[86] Ibid at P-108.
ASQA points out that the document included a suggestion that the Applicant provided short courses when this was not the case. ASQA indicates that it also included references to units and positions which did not exist. ASQA contends that this document would have left a learner or a potential learner with the impression that the Applicant’s operation was more sophisticated than it was, and that there were more resources available than there were. The Tribunal agrees.
The Tribunal finds that a document from another RTO, Federation Training, was used by the Applicant as a template to create her own student induction and orientation document. While this is not a problem in and of itself, putting any copyright issues aside, it appears that the Applicant has not exercised due care when modifying the document for the Applicant’s operations. On the face of it and as referred to in the above paragraphs, the document contains several errors and misrepresentations as identified by ASQA.
At the hearing, Mrs Galpin was asked about the reference to “LLN tutors” in the Applicant’s “study guide”. ASQA also referred to a study guide which mentioned “LLN tutors”, “LLN staff” and a library. ASQA contends this would have misled a learner into thinking that these resources would be available to them when this was not the case.
Ms Galpin did not accept that this reference suggested that the Applicant had LLN tutors available, but instead that the Applicant “could make reference to someone” and that “it was about outsourcing”. The Tribunal notes that the document itself does not mention that the Applicant would be providing access to an LLN tutor. Ms Galpin’s reply was that she would in fact provide the students with such access to a tutor. Upon being pressed further on this point, Ms Galpin conceded that it could have been made clearer “for the vulnerable” that the Applicant would not be providing the LLN tutors but re-stated that she did not see it that way. Subsequently, Ms Galpin conceded that it did need to be spelt out that external persons, and not the Applicant, would provide such support. [87]
[87] Ibid at P-107.
Ms Galpin also conceded that a further reference which read “Ask for assistance from the library” is suggestive that the Applicant had a library, when she did not. Ms Galpin agreed that this could have been clearer.[88]
[88] Ibid at P-107.
During cross-examination, Ms Galpin took Mr Penna to marketing material published by another RTO and pointed out that the other RTO did not display RTO codes on its material. Mr Penna agreed that this was the case in respect of the materials Ms Galpin had produced. He further said that his audit and reported findings were based on the Applicant’s marketing materials that Ms Galpin had provided to ASQA.[89] The Tribunal does not accept any suggestion that non-compliance by another RTO should mean that the Applicant’s non-compliance with any of the Standards should be overlooked by the Tribunal.
[89] Ibid at P-159.
Based on the evidence referred to above, the Tribunal is satisfied that the Applicant is non-compliant with Clauses 4.1, 5.1 and 5.2. Based on the rectification material before the Tribunal as at the time of the hearing, the Tribunal is not confident that this non-compliance has been adequately rectified. This factor weighs against restoration of the Applicant’s registration.
Other considerations
ASQA contends that the Applicant has failed to provide a meaningful response addressing the core issues as identified by ASQA. ASQA submitted this was so despite numerous opportunities throughout the audit and sanctions processes, for the Applicant to rectify the failings ASQA identified and to demonstrate a capacity to deliver vocational education and training that meets the minimum standard expected of a registered provider.
ASQA contends that the evidence before the Tribunal established there remained serious and ongoing concerns in relation to the Applicant's conduct and that Ms Galpin had not explained how the non-compliances occurred or what steps she had taken to ensure future compliance. ASQA contends that these are not the actions of an organisation in which the public would have confidence to provide, assess or issue nationally recognised qualifications. ASQA contends that the Tribunal cannot be satisfied that the Applicant is complying or will comply with her obligations under the regulatory regime, or that she has clearly demonstrated capacity to provide education of a satisfactory standard either now or in the future.[90]
[90] Refer paragraphs [50] to [53] of ASQA’s SFIC.
ASQA contends that the prospects of the Applicant implementing effective remedial action are poor. It supported this assertion by pointing out the Applicant did not implement the remedial action about which it gave assurances during the initial registration audit and subsequent Tribunal proceedings.[91] ASQA contends that the Tribunal can take no comfort from any assurances given by the Applicant that it will become or remain compliant in the future.
[91] Refer paragraph [54.4] of ASQA’s SFIC.
Based on the evidence and the findings made by the Tribunal as set out above in these Reasons for Decision, the Tribunal agrees with the general contentions of ASQA as referred to in the above three paragraphs and those matters weigh against restoring the Applicant’s registration.
Concessions by Applicant about shortcomings and action taken to engage consultants to assist
At the hearing, Ms Galpin gave evidence that she had asked Mr Feagan to be the Applicant’s auditor because she realised there were “some particular mistakes” she had made, as Mr Feagan had pointed out to her, and he had advised her how the Applicant could rectify them.[92] Ms Galpin also gave evidence that she had previously engaged an auditor, RTO Services, to provide guidance as to what to do and how to do it. Ms Galpin said she was meticulous about following rules, and that it was refreshing to meet Mr Feagan, who was clear about what was correct and what was not. She said Mr Feagan had provided a “lot of information which was helpful” and that he would continue to assist the Applicant.[93]
[92] Refer Transcript at P-55.
[93] Ibid at P-56 and P-57.
At the hearing, Ms Galpin made the following general submissions about the allegations relating to the way she had operated her RTO:[94]
MS GALPIN: My (indistinct) is for adult education because I want to actually understand better philosophies in dealing with ethics in administration, and I need to intellectually grow on all sorts of levels to actually administer what I am doing. I need to know that there is ethics always involved in what I am doing, that here is correctness (sic). So to be pointed out different mistakes, I have been following a lead and people have told me that I had to put the USI number of every student, and you know, it’s perhaps a misunderstanding. And the number system. Now, if someone tells me something, I will follow it through. So yes, I have been vulnerable. I’ve made mistakes. I have paid dearly for those mistakes, because I have believed in services that I have engaged. And that’s a minefield. But I am completely invested in it. I didn’t go to the ANZ bank and get that loan not to grow, and not to employ people. If you look down, you will see that – you know, wages, this is what’s going to go in, this is what the growth is. It was all projected to be able to get a good team of people. I’d actually looked at [name omitted], I’d looked at [name omitted]. I’d looked at a various people that were qualified in industry and had good strong backgrounds in TAFE so that we could actually bring, you know, other people on board. But I couldn’t possibly think of bringing anyone on board until I had a very good auditor, and I believe [Mr Feagan] to be so. Thank you.
[94] Ibid at P-58.
The Tribunal notes the Applicant’s concessions made by the end of the hearing about the Applicant’s shortcomings and more recent action taken by her to engage a consultant to provide her with assistance. However, the Tribunal does not consider that they outweigh the other matters referred to above which weigh against restoring the Applicant’s registration.
Applicant was highly selective when enrolling students
There was evidence before the Tribunal about the propensity of the Applicant to be highly selective when it came to enrolling students. The Tribunal was persuaded that Ms Galpin was particularly strict in ensuring that any student to be enrolled by the Applicant was working in the industry and had access to appropriate supervisors who could vouch for the student’s skills and knowledge. This is commendable.

At the hearing, Ms Galpin said that she had requested a few people, who had enquired about enrolling with the Applicant, to submit video footage showing whether they could load and unload a horse on a float. She said that the video evidence of one of those prospective students was okay, but she did not enrol that student because that student did not have work in the industry and was not licensed to work with a supervisor which meant that no one “could sign off on them”. Ms Galpin said she took video footage of other prospective students and the footage had showed her that those students were not capable, so she did not enrol them. She said she had taken video footage of about seven or eight in total.[95]
[95] Ibid at P-68 and P-69.
Further, there was evidence before the Tribunal that the Applicant did not enrol anyone under the age of 18 because Ms Galpin said she did not want to work with children or to assess them by distance education. She said the industry was “very hard” and she preferred to enrol students working in an existing workplace. She explained that working in a “small box” with a thoroughbred horse was confronting and you could not do so unless registered by a principal club.[96] The Tribunal did not get any sense from Ms Galpin’s evidence at the hearing that commercial priorities were likely to diminish the Applicant’s standards when it came to selecting prospective students for enrolment. Again, this is commendable, but the Tribunal cannot ignore the other matters referred to above weighing in favour of cancellation being the appropriate sanction in this case.
[96] Ibid at P-57.
Clause 7.1, Fit and Proper Person Requirements and s 22A of the NVR Act
ASQA alleges that Ms Galpin was non-compliant with Clause 7.1 requiring an RTO to ensure its executive officers or high managerial agents comply with the Standards, including the FPPR.
Regarding the VET regulatory regime, under ss 22 and 23 respectively, an RTO must comply with the Standards and with the FPPR. Since ASQA lodged its SFIC in this matter, Mr Varley stated that s 22A had been inserted into the NVR Act and it would be appropriate for the Tribunal to consider whether Ms Galpin, operating as the RTO, could or would comply with this provision in the sense of whether she would demonstrate the commitment required by that provision. The Tribunal considers that it would need to consider the degree of Ms Galpin’s commitment to the running of her RTO, as part of deciding whether the Applicant has met the FPPR, regardless of whether the Tribunal also considered whether the condition under s 22A was met by the Applicant.
The Tribunal considers that Ms Galpin has done her best to try to establish a training organisation within the racing industry to deliver VET training of a high standard. In doing so, she has shown significant commitment to set up her organisation in a way that she considered, rightly or wrongly, would meet the various legislative requirements of an RTO. Unfortunately, the Tribunal is satisfied that Ms Galpin either underestimated or misunderstood the task at hand. The Tribunal considers that Ms Galpin has misfired in several aspects in the way she has run her operations. She did not take all necessary steps to establish her training organisation in such a way as to ensure she was operating in due compliance with all of the Standards.
At the hearing, Ms Galpin made appropriate concessions in this regard. The Tribunal does not consider Ms Galpin to have acted in a way where she was placing her own commercial interests over the interests of the students, or to be deliberately cutting corners in respect of due compliance with the Standards. Quite the opposite, Ms Galpin displayed a high degree of integrity and selectivity when deciding who to enrol as students and had a genuine interest in upholding the standards of accredited persons within the racing industry. In short, the Tribunal is not prepared to conclude that Ms Galpin was not a fit and proper person.
The Tribunal is not satisfied that there was a non-compliance by the Applicant with Clause 7.1 of the Standards, or that she lacked commitment at a broad level where it was clear that she did not meet the condition of registration as provided for under s 22A of the NVR Act. The Tribunal has disregarded this allegation of non-compliance by ASQA in reaching its decision upon review in this application.
Sanctions
In respect of the issue of sanctions, ASQA contends that the Applicant had not come to the Tribunal with evidence showing that she was currently compliant with the Standards. For this reason, ASQA contends that the Tribunal should not impose any lesser sanction than cancellation, because that would involve the Applicant still operating as an RTO. Mr Varley, on behalf of ASQA, contends that the Decision Under Review should be affirmed for four reasons:
(a)the first reason was the nature and extent of the Applicant’s non-compliance with the NVR Act at the time of the 2018 audit;
(b)the second reason was that Ms Galpin had not demonstrated that the Applicant would comply with the NVR Act if her registration was restored, and she had conceded herself that more work was required;
(c)the third reason was that the Tribunal could not have confidence that Ms Galpin could achieve compliance of any reasonable quality in the future; and
(d)the fourth reason was that there is significant public interest in VET training in the racing industry being delivered at a high standard, and that public interest weighed in favour of affirming the decision under review.
ASQA highlighted that it was open to the Applicant under s 39 of the NVR Act to apply again for registration two years after the day the cancellation took effect, being in February 2021.[97] ASQA contends that the only appropriate sanction, which reflects the gravity of the issues associated with Ms Galpin’s practises, is the sanction of cancellation of the Applicant’s registration.
[97] Section 39(3) of the NVR Act provides that an organisation whose registration is cancelled under this Act may not apply for registration as an NVR registered training organisation for 2 years, or such shorter period as the National VET Regulator considers appropriate, after the day the cancellation takes effect.
Ms Galpin, on the other hand, contends that she would like to see the cancellation “removed against Maxine Galpin”. Ms Galpin invited the Tribunal to set aside the Decision Under Review and said she would agree to there being further audits to check the Applicant’s future compliance.
During cross-examination, Mr Feagan said he did not think the outcome of the 2018 Audit was proportionate to what the Applicant had done.[98]
[98] Refer Transcript at P-17.
CONCLUSION
The Tribunal accepts ASQA’s contentions that the Applicant had, in effect, accepted that she was not ready to operate as a compliant RTO and would need more time to work with Mr Feagan and others to become compliant with several of the Standards and the conditions of registration under ss 21 and 22 of the NVR Act. The Tribunal was not satisfied that the Applicant had adduced evidence to demonstrate that she has significantly narrowed the extent of her non-compliances.
The Tribunal could not be satisfied on the evidence that the Applicant would be compliant now or imminently, because the proposed arrangement with Mr Feagan taking up an ongoing role of the Applicant’s “auditor” had not progressed beyond some emails and relatively vague assertions about what would occur if the Applicant’s registration was restored. Further, the intended work that Mr Feagan is to carry out for the Applicant of assisting her to complete the preparation of her TASs and training and assessment materials for the New Courses is yet to be done.
The Tribunal accepts ASQA’s contentions that Ms Galpin’s evidence in relation to the Applicant’s student induction and orientation document was regrettable in that she did not acknowledge the flaws in those documents until she was pressed at the hearing. It is acknowledged that there has been a positive shift in Ms Galpin’s philosophical views in respect of the requirements of the “racing” training packages students need to meet before VET qualifications were issued. This was previously a major sticking point in respect of the Applicant’s preparedness to comply with the Standards.
However, the Tribunal accepts ASQA’s contentions there has been a considerable and unacceptable delay in the Applicant addressing the identified non-compliances in that she has been on notice since the 2018 Audit, now over two years ago. ASQA contends that the Applicant was also aware at least since July 2018 that there was a new training package which meant she would need to develop new training and assessment materials. ASQA contends that the Applicant might have come to this Tribunal with an overhauled system, that is, with material that complied with the new training package and lead material that corrected the issues identified by Mr Penna – but she had not done so. The Tribunal agrees and does not consider it appropriate that the Applicant be given further time to bring her operations up to a level which is compliant with all of the Standards. Those opportunities have already been provided to the Applicant. As pointed out by ASQA, the Applicant is at liberty to now attend to those matters and if she wishes to do so, may re-apply for registration as an RTO at some point in the future.
The Tribunal considers there to be an unacceptable risk to employers, horse owners and future graduates if the Applicant issued students with qualifications without properly assessing them to ensure they possess the requisite theoretical knowledge and practical horse handling skills under the relevant training packages. The Tribunal remains concerned that this may occur, if the Applicant was permitted to recommence its operations at the present time.
As set out above, the Tribunal has considered in reviewing this decision that the Applicant has failed to comply with numerous standards, specifically, Clauses 1.1, 1.13, 1.16, 1.3, 1.8, 3.1, 4.1, 5.1 and 5.2, and remains non-compliant with those clauses. Accordingly, the Tribunal concludes that the Applicant does not meet the condition for registration under ss 21 and 22 of the NVR Act.
The Tribunal considers that it is appropriate in the circumstances that the Applicant’s registration as an RTO be cancelled with immediate effect and that no other lesser sanction should be imposed. The Tribunal is not satisfied that the alternative sanction Ms Galpin suggested, that is, that the Applicant be audited, would adequately address the many shortcomings of the RTO such that the Tribunal could be confident that the Applicant would comply with the Standards, and meet the conditions of registration under ss 21 and 22 of the NVR Act, if its registration was restored. To put it simply, the Tribunal considers there is much work to be done by the Applicant to bring its operations into compliance with all of the Standards. The Applicant needs to undertake a comprehensive overhaul of her TASs and training and assessment materials with respect to the New Courses and its RPL assessment processes.
Accordingly, the Tribunal affirms the Decision under Review. This decision will take effect immediately.

I certify that the preceding 213 (two hundred and thirteen) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker.

........[sgd].......................................................
Associate
Dated: 25 February 2021

Dates of hearing:

26, 27 and 28 October 2020

Applicant:
Self-represented

Counsel for the Respondent:

Solicitor for the Respondent:

Mr Matthew Varley

Ms Kristen Elliot, ASQA

[2021] AATA 309

25 February 2021

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