Sand Goanna Institute Pty Ltd and Australian Skills Quality Authority - [2020] AATA 769

Sand Goanna Institute Pty Ltd and Australian Skills Quality Authority [2020] AATA 769 (3 April 2020)
Division:GENERAL DIVISION
File Number(s):2017/6671
Re:Sand Goanna Institute Pty Ltd
APPLICANT

Australian Skills Quality AuthorityAnd
RESPONDENT

DECISION
Tribunal:Senior Member B J Illingworth

Date:3 April 2020
Place:Adelaide

The decision under review is affirmed.
....................... [Sgnd]..................................
Senior Member B J Illingworth
CATCHWORDS

VOCATIONAL EDUCATION AND TRAINING – registration cancelled – non-compliance with the standards – standards 1.1, 1.2, 1.3, 1.5, 1.6, 1.8, 3.1 – training and assessment – non-compliance with s 211 of the NVR Act - decision affirmed
LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
National Vocational Education and Training Regulator Act 2011 (Cth)
CASES
Australian Academy of Management & Science Pty Ltd and Australian Skills Quality Authority [2013] AATA 530
Australian Tertiary Academy Pty Ltd and ASQA [2018] AATA 4875
Austwide Institute of Training Pty Ltd and Secretary, Department of Education and Training [2016] AATA 266
Merc Training Pty Ltd and Australian Skills Quality Authority [2018] AATA 2298
Shi v Migration Agents Registration Authority [2008] HCA 31
SECONDARY MATERIALS

Standards for Registered Training Organisations 2015
REASONS FOR DECISION
Senior Member B J Illingworth
3 April 2020
INTRODUCTION

Sand Goanna Institute Pty Ltd (“the Applicant”) has applied for the review of a decision of a delegate of the Australian Skills and Quality Authority (“the Respondent” or “ASQA”) dated 1 November 2017 and under ss 36(2)(f) and 39 the National Vocational Education and Training Regulator Act 2011 (Cth) (“NVR Act”) to cancel its registration as a National Vocational Education (“NVR”) and Training Regulator Registered Training Organisation (“RTO”).
At the hearing, the Applicant was represented by Mr Legat of SB Partners Legal Pty Ltd. The Respondent was represented by Mr Lloyd of ASQA.
BACKGROUND
The Applicant was first registered as a RTO with the Respondent on 1 July 2011. Mr Boyd Sparrow was the sole director and shareholder of the Applicant at all material times.
The Applicant’s business involved providing students with Vocational Education and Training (“VET”) courses online, leading to qualifications in business, community services, sport fitness and recreation. More specifically, the Applicant was approved to deliver 10 qualifications including a Certificate III in Fitness, Diploma of Fitness, Diploma of Early Childhood Education and Care, Certificate III in Early Childhood Education and Care, Diploma of Human Resources, and Diploma of Human Resources Management. It is these qualifications that were the subject of a compliance monitoring audit (“the audit”) to which this matter relates.
On 1 April 2015, the Standards for Registered Training Organisations (RTOs) 2015 (“the Standards”) commenced.
On 20 and 21 April 2015, the Respondent conducted an audit of the Applicant’s operations and found it to be non-compliant with clauses 1.1, 1.5, 1.6, 1.8 and 2.1 of the Standards. The Applicant was given the opportunity to respond and provide further documentation demonstrating compliance with the clauses identified by the Respondent. The Applicant provided such further documentation on 24 June 2015.
On 23 July 2015, the Respondent decided to approve the Applicant’s registration for a period of seven years commencing on 29 June 2015. The Respondent imposed a condition on the Applicant’s registration that a further audit be conducted within 12 months to assess ongoing compliance.
In August 2016, the Respondent contacted the Applicant to schedule an audit. The audit was initially scheduled for November 2016; however, the audit took place on 5 and 6 April 2017.
During the audit, the Applicant was given the opportunity to provide all relevant documents demonstrating the qualifications’ compliance with the Standards. There were difficulties in providing the material and so at the conclusion of the audit the Applicant provided the lead auditor, Mr Wayne Stent, with a USB stick said to contain all relevant documents. For reasons that are not agreed between the parties, that USB stick was lost or misplaced and the auditors did not view its contents.
Following a review of the evidence, the Respondent identified that the Applicant was non-compliant with clauses 1.1, 1.2, 1.3, 1.5, 1.6, 1.8 and 3.1 of the Standards.
On 23 August 2017, due to non-compliances identified at the audit, the Applicant was further invited to provide a written response to the Respondent’s Notice of its intention to cancel the Applicant’s registration as a RTO. The Applicant was to provide such response on or before 20 September 2017.
On 20 September 2017, the Applicant provided the Respondent with the following documentation via an electronic Dropbox link:
(a)A written response to the Notice of intention to cancel registration;
(b)An implementation plan; and
(c)Rectification documents.
After reviewing the material and on 9 November 2017, the Applicant’s registration was cancelled effective 5 January 2018, as the Respondent decided that the Applicant remained critically non-compliant with clauses 1.1, 1.2, 1.3, 1.5, 1.6, 1.8 and 3.1 of the Standards.
On 9 November 2017, the Applicant lodged with the Tribunal an application for review of the Respondent’s decision.
JURISDICTION
Under s 203(2) of the NVR Act, an application may be made to this Tribunal for a review of a reviewable decision of the Respondent.
ISSUES TO BE DETERMINED BY THE TRIBUNAL
The issues for the Tribunal to determine are whether the Applicant was non-compliant with the Standards as identified by the Respondent and, if so, whether the Applicant’s registration should be cancelled or reinstated with or without conditions.
LEGISLATIVE FRAMEWORK
The relevant legislation for the consideration of the Tribunal is the NVR Act. The objects of the NVR Act are contained in s 2A and are as follows:
2A Objects
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
(d)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
(e)to protect students undertaking, or proposing to undertake, Australian VET by ensuring the provision of quality VET; and
(f)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 Respondent is the national VET regulator. The NVR Act empowers the Respondent to regulate VET courses and RTOs under the VET Quality Framework to ensure nationally approved quality standards are met. Section 3 of the NVR Act defines the VET Quality Framework as:
VET Quality Framework means the following:
(a)the Standards for NVR Registered Training Organisations;
(aa)the Quality Standards;
(b)the Australian Qualifications Framework;
(c)the Fit and Proper Person Requirements;
(d)the Financial Viability Risk Assessment Requirements;
(e)the Data Provision Requirements.
Under s 21 of the NVR Act a RTO must:
(a)comply with the conditions set out in sections 22 to 28; and
(b)comply with any conditions imposed on the organisation’s registration under subsection 29(1),
Section 22(1) of the NVR Act provides:
An NVR registered training organisation must comply with the Standards for NVR Registered Training Organisations.
Section 35A of the NVR Act provides that the Respondent may give a written direction to a RTO requiring the organisation to rectify a breach of a condition of the organisation’s registration if it is satisfied that it is appropriate to do so.
Section 36 of the NVR Act provides for the imposition of a range of administrative sanctions. Regard may be had to the RTO’s conduct, or circumstances existing, before a sanction is imposed. After natural justice requirements have been met, such sanctions include cancelling a RTO’s registration under s 39 of the NVR Act pursuant to s 36(2)(f) of the NVR Act.
In Austwide Institute of Training Pty Ltd and Secretary, Department of Education and Training,[1] Senior Member O’Loughlin described the considerations that should be had in making a decision under s 39 of the NVR Act, at [73]:
Whether it is appropriate to cancel the Applicant’s NVR Act registration under s 39 of that Act calls for consideration of:
(a)the Applicant’s conduct before and after being put on notice by the Respondent that there are compliance concerns with NVR Act obligations, and the extent and likely effect of any rectification;
(b)the seriousness of non-compliance with NVR Act obligations in the context of the objects of the regime, particularly the importance of quality training and assessment and the prospect of effective remedial action and recurrence of the non-compliance; and
(c)other relevant matters, which must have regard to the objects of the Act and scheme which it provides for and include the effect of the decision on the Applicant’s students and Australia’s reputation, both nationally and internationally, as a provider of high quality VET and the related public interests associated with those matters.
[1] [2016] AATA 266.
Cancellation of a RTO’s registration is available if the Respondent reasonably believes the RTO is unlikely to comply with the regulatory regime and maintain compliance thereafter. If a less severe sanction would ensure ongoing compliance, then those measures should be considered first.[2]
[2] Australian Tertiary Academy Pty Ltd and ASQA [2018] AATA 4875, [40].
Section 211(1) of the NVR Act is relevant when a RTO’s registration is cancelled, it provides:
(1)A person who possesses or controls VET student records relating to a training organisation or former registered training organisation must provide a copy of those records to the National VET Regulator if:
(a)    the person is, or was, an executive officer or high managerial agent of the organisation; and
(b)    either:
(i)the organisation’s registration has been cancelled and arrangements have not been made for the transfer of some or all of the records under section 213; or
(ii)the organisation has effectively ceased to operate (even though the organisation remains an NVR registered training organisation).
(2)A person must provide a copy of VET student records to the National VET Regulator within:
(a)    if an organisation’s registration has been cancelled—30 days of the day from which cancellation takes effect; and
(b)    if an organisation has effectively ceased to operate—30 days of the day from which operations effectively ceased.
(3)A person commits an offence if the person fails to comply with subsection (2).
Penalty:   150 penalty units.
(4)A person contravenes this subsection if the person fails to comply with subsection (2).
Civil penalty:         300 penalty units.
The Standards
Pursuant to s 185(2) of the NVR Act, the Minister may make standards for RTOs.
As a result of the 2017 audit, the Respondent identified that the Applicant was non-compliant with clauses 1.1, 1.2, 1.3, 1.5, 1.6, 1.8 and 3.1 of the Standards.
Standard 1 requires that a RTO’s training and assessment strategies and practices be responsive to industry and learner needs and meet the requirements of training packages and VET accredited courses.
Relevantly, to be compliant with Standard 1 the RTO must meet the following clauses:
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.
1.3.The RTO has, for all of its scope of registration, and consistent with its training and assessment strategies, sufficient:
a)trainers and assessors to deliver the training and assessment;
b)educational and support services to meet the needs of the learner cohort/s undertaking the training and assessment;
c)learning resources to enable learners to meet the requirements for each unit of competency, and which are accessible to the learner regardless of location or mode of delivery; and
d)facilities, whether physical or virtual, and equipment to accommodate and support the number of learners undertaking the training and assessment
1.4.…
Industry relevance
1.5.The RTO’s training and assessment practices are relevant to the needs of industry and informed by industry engagement.
1.6.The RTO implements a range of strategies for industry engagement and systematically uses the outcome of that industry engagement to ensure the industry relevance of:
a)its training and assessment strategies, practices and resources; and
b)the current industry skills of its trainers and assessors.
1.7.…
Assessment
1.8.The RTO implements an assessment system that ensures that assessment (including recognition of prior learning):
a)complies with the assessment requirements of the relevant training package or VET accredited course; and
b)is conducted in accordance with the Principles of Assessment contained in Table 1.8-1 and the Rules of Evidence contained in Table 1.8-2.
To be compliant with Standard 3.1, the RTO must meet the following:
The RTO issues AQF certification documentation only to a learner whom it has assessed as meeting the requirements of the training product as specified in the relevant training package or VET accredited course.
THE ROLE OF THE TRIBUNAL
It is necessary in this case to highlight the role of the Tribunal in these proceedings. The Tribunal is to undertake a review that is fair, just, economical, informal and quick,[3] exercising the same powers, and subject to the same formal constraints as the original decision-maker in order to come to the ‘correct or preferable decision’ on the material available at the time of the hearing.[4] In this case, s 36(3)(b) of the NVR Act expressly authorises the decision-maker to have regard to the Applicant’s conduct or circumstances that have arisen since the Respondent gave the Notice of its intention to cancel the Applicant’s registration on 24 August 2017.
[3] Administrative Appeals Tribunal Act 1975 (Cth) s 2A.
[4] Shi v Migration Agents Registration Authority [2008] HCA 31.
Prior to a hearing in this matter, the parties were given appropriate opportunity to present further evidence addressing the issue of non-compliance with the Standards. This is particularly in the Applicant’s best interests, as it is the Applicant who bears the burden of proof in providing evidence that the Tribunal accepts with respect to the issues involving compliance with the Standards. Nevertheless, it is the duty of the parties to assist the Tribunal in this regard as the Tribunal does not necessarily maintain a level of knowledge and expertise comparable to the parties. The parties must also use their best endeavours to assist the Tribunal to fulfil the Tribunal’s objective of conducting a review that is fair, just, economical, informal and quick.[5]
[5] Administrative Appeals Tribunal Act 1975 (Cth) s 33(1AB).
INTERLOCUTORY HEARING
By email correspondence, and during the course of a directions hearing before the Tribunal, the Respondent requested that the Applicant provide copies of numerous documents it said were relevant to the matter. The Applicant declined production and the Respondent issued a Summons to Produce Documents (“the summons”) to the Applicant and Mr Sparrow. The documents requested were:
(a)The current training and assessment strategies for four qualifications, namely:
(i)SIS40215 Certificate IV in Fitness;
(ii)BSB50415 Diploma in Business Administration;
(iii)CHC52015 Diploma of Community Services; and
(iv)CHC41015 Diploma of Counselling;
(b)The current assessment tools of each unit of capacity; and
(c)Copies of all completed assessment tasks for certain students in the units of competency.
The Tribunal notes that the four qualifications referred to in the summons were not the qualifications that were the subject of the audit; nor were the documents requested in relation to the audit. The Applicant challenged the summons. Their argument included the relevance and utility of the requested documents, improper use of summons powers and consideration of the Applicant’s financial position because of the cost involved in producing the summons material.
Following an interlocutory hearing, the Tribunal ruled that the documents which were the subject of the summons were not relevant to the reviewable decision, nor were they relevant to any issue to be determined by the Tribunal. Accordingly, the summons was set aside.
The Respondent has an obligation to lodge every document that is in its possession or control that is relevant to the decision under review.[6] There is an expectation this will be presented in a format upon which the Tribunal can easily identify the evidence the Respondent relied upon in coming to its decision. The format of the documents received did not assist the Tribunal in that task.
[6] Ibid s 37.
CURRENCY OF THE EVIDENCE BEFORE THE TRIBUNAL
On 27 December 2017, the Respondent lodged with the Tribunal what appeared to be the T-Documents[7] comprising of 196 pages. These documents were not indexed.
[7] Exhibit R1.
On 16 March 2018, the Applicant lodged with the Tribunal five volumes of documents totalling 4,305 pages which it referred to as “the Applicant’s T-Documents”’[8] along with various affidavits and the Applicant’s Statement of Facts, Issues and Contentions (“SoFICs”).
[8] Exhibit A1.
On 1 May 2018, the Respondent lodged further material in the form of Supplementary T-Documents,[9] as well as affidavits of the auditors Ms Brook Wade (now Ms Brooke Smith)[10] and Mr Wayne Stent,[11] and a SoFICs.
[9] Exhibit R2.
[10] Exhibit R9.
[11] Exhibit R10.
On 28 May 2018, the Respondent lodged an amended SoFICs.
On the first day of the hearing, the Applicant provided the Tribunal with further documents, namely two volumes referred to as the “Applicant’s Tender Documents” and “Applicant’s Filed Documents”.[12] These volumes contained fresh material. Similarly, the Respondent provided the Tribunal with an additional three volumes of “Hearing Reference Documents”.[13]
[12] Exhibit A2.
[13] Exhibit R2; Exhibit R3.
During the hearing, the Applicant stated that there was additional relevant information that that had been provided to the Tribunal and Respondent, namely a USB stick containing videos which form part of learner assessment materials. Neither the Respondent nor the Tribunal was in receipt of such a USB stick. The Tribunal enquired with the Registry about the filing of a USB stick by the Applicant; however, there was no record of this having been received. Nothing turned on this issue and no adverse inference was drawn with respect to the question of the filing of the USB stick. The Tribunal allowed the Applicant the opportunity to submit the evidence contained within the USB stick, which was received by the Tribunal on 26 October 2018.[14] The USB stick contained four short videos of a learner, “DR”, instructing a client to do various exercises, and conducting a pre-screening interview.
[14] Exhibit A10.

There was an extraordinary volume of material before the Tribunal, some of which was duplicated. Its relevance to the issues in dispute was not readily apparent and was not fully clarified by the parties. While the Tribunal must consider the entirety of the evidence before it in reaching the correct or preferable decision, it is not for the Tribunal to interrogate expansive documentary evidence in an attempt to identify and interpret its relevance. This is contrary to the Tribunal’s role in providing a fair, just, economical, informal and quick mechanism of review.
The Applicant’s approach in these proceedings tended to focus on the Respondent’s conduct. In particular, the lack of procedural fairness and natural justice the Respondent afforded to the Applicant.
Senior Member Poljak encountered a similar approach from an Applicant in Merc Training Pty Ltd and Australian Skills Quality Authority.[15] The Senior Member observed at [23], that:
[T]he case put forward by the Applicant is in the nature of judicial review, focusing on the inadequacy of ASQA’s reasons for decision and an alleged denial of procedural fairness and natural justice. This may have impacted on the submissions and evidence relied upon by the Applicant in these proceedings. As already touched upon, the role of the Tribunal in the system of administrative law is to review administrative decisions on the merits: that is, to consider afresh the facts, law and policy relevant to a decision under review and decide whether that decision should be affirmed, varied or set aside. Any alleged deficiencies in the decision making process below, as asserted by the Applicant, may be remedied by the review of this Tribunal, having regard to all of the evidence before it.
[15] [2018] AATA 2298.
It follows that any submissions made relating to the conduct and qualifications of the auditors, the errors made in the Evidence Analyses or Audit Report, the Respondent’s interpretation of the Standards and the handling of the evidence during and after the audit, are all alleged deficiencies that can be remedied by the review of this Tribunal.
The Tribunal can appreciate that the Respondent may have based its decision largely on the findings of the auditors in the Audit Report and Evidence Analyses. It is unjust for the Tribunal to solely rely on the various Evidence Analyses of the Respondent. The Tribunal will consider the Evidence Analyses in conjunction with the balance of documents tendered and referred to by the parties. It will also involve an assessment of the Applicant’s conduct, or circumstances existing, before the Respondent had cause to consider imposing a sanction on the organisation under s 36(3) of the NVR Act, as well as circumstances existing after the fact.
THE EVIDENCE BEFORE THE TRIBUNAL
The 2017 Audit
The audit was conducted on 5 and 6 April 2017 at Mr Sparrow’s home. The auditors were Mr Wayne Stent, the lead auditor, and Ms Brooke Smith (formerly known as Ms Brooke Wade) (collectively “the auditors”). Mr Sparrow and Mr John Suttle, a consultant for the Applicant, were also in attendance.
The audit sampled and assessed learners’ work against a range of Standards and in respect of the following qualifications:
(a)BSB50615 Diploma of Human Resources Management;
(b)CHC30113 Certificate III in Early Childhood Education and Care;
(c)CHC50113 Diploma of Early Childhood Education and Care;
(d)SIS30315 Certificate III in Fitness.
At the time of the audit, the auditors identified critical non-compliance in relation to clauses 1.1, 1.2, 1.3, 1.5, 1.6 and 1.8 of the Standards, and non-compliance in relation to clause 3.1 of the Standards. During this time, as well as after the audit, the Applicant was afforded the opportunity to provide documentation in support of compliance with these Standards.
After considering all the evidence, the auditors concluded the Applicant remained non-compliant with clauses 1.1, 1.2, 1.3, 1.5, 1.6, 1.8 and 3.1 of the Standards. The nature of the non-compliances were detailed in the Audit Report dated 5 June 2017[16] and are summarised as follows:
(a)With respect to clauses 1.1 and 1.2 of the Standards, there was insufficient evidence to confirm the learner was provided with the appropriate amount of practical training; and that the Applicant relies on the work placements to provide practical training.
(b)With respect to clause 1.3 of the Standards, there was no evidence to confirm the Applicant has identified all of the equipment and infrastructure that must be available to learners and has implemented a process to ensure they are available at each of the locations where learners undertake work placement.
(c)With respect to clauses 1.5 and 1.6 of the Standards, there is no evidence of industry engagement; and has not applied the outcomes of the engagement to its qualifications.
(d)With respect to clause 1.8 of the Standards, the assessments did not confirm the learner demonstrated all the knowledge requirements and assessor guides did not contain sufficient information and performance benchmarks to enable them to objectively assess the work.
(e)Non-compliance with clause 3.1 of the Standards occurs as a result of non-compliance of Standard 1.8.
[16] Exhibit R10: Annexure “WS-3”.
Evidence Analysis Reports
A number of Evidence Analysis reports were lodged by the Respondent with the Tribunal over the course of the proceedings, namely:
(a)Evidence Analysis report dated 20 October 2017 (“primary Evidence Analysis”);[17] based on evidence received on 20 September 2017 in response to the Respondent’s Notice of cancellation;
(b)Evidence Analysis dated 26 April 2018 (“supplementary Evidence Analysis”);[18] taking into account the further evidence received on 16 March 2018;
(c)Evidence Analysis dated 5 November 2018 (“further supplementary Evidence Analysis”)[19] taking into account the post hearing evidence received on 31 October 2018, being four short videos provided by the Applicant.
[17] Ibid: Annexure “WS-5”.
[18] Ibid: Annexure “WS-6”.
[19] Exhibit R13.
These Evidence Analyses identified further issues comprising the non-compliances of each of the clauses of the Standards.
The Applicant during the hearing identified and alerted Mr Stent to three errors contained amongst the supplementary Evidence Analysis which formed part of his reasoning for recommending cancellation and submitted that these errors had a material effect on the audit outcome. These errors included incorrect referencing of documents between the Evidence Analysis and the Audit Report, and a failure to review all materials. Mr Stent said the errors did not affect the outcome of the Evidence Analysis and his recommendation.
In the hearing, the Applicant submitted that there were more errors; however, did not take Mr Stent to them. The further errors claimed by the Applicant were in the nature of failure to review or consider documents.
Evidence of Mr Boyd Sparrow
The Tribunal heard evidence from the sole director of the Applicant, Mr Boyd Sparrow, and received his witness statement[20] and affidavit[21] which formed the majority of his evidence in chief. Hence Mr Sparrow was not taken to documents before the Tribunal which the Applicant relied on as evidencing deficiency in the audit process, or that were relevant to the interpretations of the Standards, such that they could be remedied by the Tribunal on review. Much of Mr Sparrow’s evidence was in cross-examination with reference to only a small portion of the volume of material before the Tribunal.
[20] Exhibit A3.
[21] Exhibit A4.
Mr Sparrow holds about 23 separate qualifications obtained between 2005 and 2017, including qualifications in auditing, for which Mr Sparrow suggests he is in fact more qualified to audit RTOs than the auditors who conducted the Applicant’s audit.
The 2017 Audit
On 5 and 6 April 2017, the audit took place at Mr Sparrow’s home. Mr Suttle was also assisting Mr Sparrow in providing documents to the auditors. Mr Sparrow said that Mr Stent told him that the auditors were using the new student-centred auditing model; however, that they did not have all of the information necessary to use it and that the audit templates were custom templates.
Mr Sparrow knew about the new audit model that was being implemented as he had attended a briefing session conducted by the Respondent in the Gold Coast in 2016. Around that time he had also been provided with documents relating to the implementation of the new audit model, including a fact sheet titled, “Fact sheet – ASQA’s student centred audit approach”.[22]
[22] Exhibit R7.
Nonetheless, Mr Sparrow observed that the manner in which the audit was conducted was markedly different to what had occurred previously. In particular, there was now little opportunity for rectification on the day of the audit or to address issues of non-compliance as they arose. There was little time to explain or find further information.
Mr Sparrow raised his concerns with Mr Stent and, at the end of the audit, Mr Sparrow provided Mr Stent with a USB stick containing all of the documents relevant to the audit that had been compiled by Mr Suttle.
Events Following the 2017 Audit
On 10 April 2017, Mr Sparrow said he received a telephone call from Mr Stent, who said he had ‘done the unspeakable’[23] and lost the USB stick that Mr Sparrow had provided to him at the conclusion of the audit.
[23] Exhibit A3, [22].
Mr Sparrow was given the opportunity to resubmit these documents and he did so via a Dropbox link on 21 April 2017.
On 24 May 2017, Mr Sparrow telephoned Mr Stent in relation to the audit and the documents provided by Dropbox link. Mr Stent stated that he was not happy with the format of the audit documents, that he was contemplating not reviewing them and that he was giving Mr Sparrow another opportunity to:
“[F]ix the issues” I should provide them in a fashion that he approves of, or the cost will be excessive like the “bill you will receive for this last audit.”’[24]
Mr Sparrow said that he was, at the time, upset with Mr Stent’s tone and concerned that Mr Stent may not properly consider the documents. Mr Sparrow said he reproduced the documents to the best of his ability, which was particularly difficult because of the structure of the Applicant’s computer software program.
[24] Ibid.
On 24 August 2017, the Applicant received an email from the Respondent attaching a Notice of intention to cancel its registration as a RTO, the Audit Report and ASQA Fact Sheet outlining the compliance audit charges. Although Mr Sparrow did not agree with the majority of the matters raised in the non-compliance Notice, he nonetheless immediately began to rectify certain alleged deficiencies which he could identify in the RTO documents. This included, correcting errors, seeking guidance from industry professionals and rectifying the Applicant’s internet-based training delivery software.
On 20 September 2017, the Applicant emailed the Respondent a Dropbox link which included the rectification documents, a written response to the intention to impose sanction Notice and an implementation plan.
On 18 October 2017, Mr Sparrow said he received a telephone call from Mr Stent who allegedly made a number of comments with respect to the Applicant, namely that the Applicant was ‘“dodgy”, “bogus”, “fake” and “fraudsters”’[25] and that he was going to make sure the Applicant was ‘exposed’.[26]
[25] Ibid [25].
[26] Ibid.
Student Rectification
On 10 September 2017, the Applicant sent a letter to all relevant students who were enrolled in the qualifications identified as requiring rectification. Mr Sparrow evidenced this claim with a template letter;[27] however, no evidence of letters addressed to specific students, or confirmation of receipt of such letter, was provided to the Tribunal.
[27] Exhibit A3: Annexure “BS8”.
Mr Sparrow said he undertook rectification of purported deficiencies with the relevant students. The Applicant highlighted students in the courses affected by the audit; contacted each student; advised each of them of the auditor’s findings of deficiency and advised that they will make available training for each of them at the Applicant’s cost, including additional training to meet any deficiency. Mr Sparrow said they tailored the approach on a case-by-case basis for the affected students to come into the Applicant’s premises. There, the Applicant would ‘skill assess’[28] them and then, based on any deficiencies, they received ‘up training’[29] if required. There was no document or other independent evidence to corroborate Mr Sparrow’s evidence.
[28] Transcript (17 October 2018), 10.
[29] Ibid.
In cross-examination, Mr Sparrow explained further that students would come to their location. If necessary, they flew them from interstate. Mr Sparrow said that they assessed their students from the 12 month period prior to the audit. They identified 50 to 60 learners who may have been affected but determined that only five or six needed to be brought in and talked to. However, there was no corroborating evidence as to the nature and extent of any deficiency and what up training, if any, was received.
The Tribunal asked Mr Sparrow about the 50 to 60 students who were identified as those who fell into the category of students potentially needing to be reviewed, and how that occurred. He explained that they looked at the alleged deficiencies in the Audit Report and gave the example of plagiarism. They would then:
[G]o and screen the students and look at their samples of [pooled] data … And if we don't find any plagiarism, the[n] obviously one can assume that they can be excluded’.[30]
[30] Ibid 63.
Mr Sparrow was not sure if any specific documentation of this process had been provided to the Tribunal apart from the template letter to be relied on to send out letters to the students and a follow-up letter asking the students to come in; although he believed a letter was sent to the Respondent explaining how the Applicant implemented compliance.
In re-examination, Counsel for the Applicant referred the Tribunal to paragraphs [40] and [47] of Mr Sparrow’s witness statement about training and rectification of students. That referred to students DR and “KQ” (also referred to as “KQH”). In the case of each student, there was a question as to whether they had completed the required practical case studies in respect of certain units of competency. Following inquiries made by Mr Sparrow he was able to satisfy himself that each had completed appropriate training and assessment and, in the case of KQH, the assessor was satisfied KQH was competent. Accordingly, each was able to be deemed competent.
The Applicant’s Business
The audit was conducted at Mr Sparrow’s home because the Applicant’s business premises were undergoing building work. Mr Sparrow expressed the intention to lease a business premises at such time that the Applicant is reinstated as a RTO.
At the business premises, the Applicant could conduct simulated work environments for students; however, this was not vital as courses could be conducted at different venues or any location that allowed for a simulated environment. This was particularly true as students would be located all over the country and so training would still need to be delivered to them even if they could not attend the business premises. Therefore, the Applicant had trainers and assessors located in every State of Australia. At the time of the Applicant’s RTO registration cancellation, Mr Sparrow estimated that there were 11 trainers and assessors delivering training and assessment to approximately 200 to 800 students enrolled over all the qualifications offered by the Applicant. If an assessor was not available in a particular State to deliver a particular training package, then an assessor in the next closest State would deliver that training package.
The Applicant was approved to deliver 10 qualifications; each qualification being comprised of multiple units. Mr Sparrow said:[31]
[T]he units are delivered in a sequence and an order, and that scaffolding the units, whilst they’re not holistically developed together so that they interline like this, there’s significant crossover with the units.
[31] Ibid 18.
All qualifications are 12 months in duration; however, further time could be allowed if requested; this would cost students more money. It is the government that determines the hours for different components of units of study based on the complexities of each. Before a student commences a qualification, the Applicant assesses that student’s learning capacity to determine how long it will take them to complete a unit of study. The Applicant ensures every learner has the ability to apply for recognition of prior learning. Mr Sparrow said no person should have to retrain or redo anything and if there was a gap in their knowledge, that gap could be addressed through the online program, and then the training plan starts ‘in succession order of one unit at a time’.[32]
[32] Ibid 20.
A student’s learning is conducted via an online portal which might contain instructional videos demonstrating how a task is to be performed or theoretical procedures to be followed. It is through these portals that students communicate back and forth with the trainer and assessor that is assigned to them for the life of their enrolment.
Under the Applicant’s model of delivery, a student was obliged to find an industry work placement to complete the practical training part of the course. Where this was impracticable, a simulated environment could suffice.
A suitably qualified person at the industry workplace then acts as a relevant work placement supervisor who is:[33]
[G]iving observational information to us on activities that we assigned them to do in the workplace, and comment back to us about their performance, their level of performance against those, and then our assessors used that [pooled] evidence along with their journey process or relating back and forth and the training that happens with the trainer and assessor through the portals, and through the online theory, together, collectively, to give a picture of competency.
[33] Ibid 14.
These work placement supervisors are not paid; they simply provide mentorship and their purpose is to gather evidence for the assessor who will then review that evidence to determine whether a student has achieved competency. For example, a student will learn a procedure and then record a video of themselves carrying out that procedure in the workplace or simulated environment. That video will be provided to the assessor with resultant assessment and ongoing development of the particular procedure.
Mr Sparrow was questioned at length whether this process was part of a student’s training. He said that the work placements were not delivering the training, but that they were part of the training and the picture of competency. He said this was part of what was known as “pooled” evidence. It is the trainers and assessors who deliver training and assess a student’s competency and once they are satisfied of a student’s competency in a unit, that student will move on to the next one. Mr Sparrow said that the learning component can be a by-product of training as a scaffolding process where the student is developing self-autonomy or learning on the job, doing and seeing these types of things. It was finally acknowledged that this process could be a learning or training component of the unit.
Mr Sparrow described the different methods of learning as ‘scaffold learning’.[34] He said that the Applicant needed to meet the training package requirement. For example, he said a training package requires at least 120 of hours of training, but he said, ‘we actually exceed that by doing 180’.[35] In explaining how the learning process operated, he said: [36]
The theory component, then they go to the workplace and do the practical. Then they come back and do some more theory. Then they go back. It’s all developed in bite sized chunks so that it’s not done in 22 days. It’s not - the course is a 12 month course.
[34] Ibid 16.
[35] Ibid.
[36] Ibid.
Questions about the Fitness Qualifications

The Training and Assessment Strategy (“TAS”) document for Certificate III in Fitness[37] is a generic 19 page document produced by the Applicant and divided into various parts. The TAS document was created by the Applicant for the purpose of giving an overview of the training and assessment strategies to satisfy compliance with this Certificate of study.
[37] Exhibit R3: Volume 2: Tab 4.
The Certificate III in Fitness is comprised of 16 units. The TAS included a table outlining the hours to be performed in various areas of learning; this included practical training, reading and research as well as practice and assessment activities, which were required for each unit and the total volume of learning to achieve compliance. Mr Sparrow was asked what was meant by “volume of learning”. This, he explained at length, but in short he said it includes:
(a)The amount of training;
(b)The amount of learning; and
(c)The amount of practice.
The TAS also included spreadsheets detailing how each of the units of study were to be delivered to students, namely in the classroom or during work placements as well as in lectures, workbooks, role plays and other interactive activities. The TAS also outlined the assessment method for each unit of study such as observation, simulation, third party reporting, written tests and practical assessments.
The total volume of learning for the Certificate III in Fitness required by the Australian Qualifications Framework (“AQF”)[38] is between 1200 and 2400 hours.[39] A broad range of hours is provided because a Certificate III course might have varying units of competency to be completed. It was the Applicant’s responsibility to determine the exact volume of learning for each qualification. The Applicant had allocated 1213 hours for this particular course and Mr Sparrow said that, in differentiating between students, ‘we ordained what the minimum requirement was for those cohorts of students so that they got the training with our program.’[40]
[38] Ibid Volume 1: Tab 5.
[39] Ibid: Tab 4, 164.
[40] Transcript (17 October 2018), 27.
The “General Information for Learners, Assessors and Relevant Persons”[41] is 34 page document that details the role of the relevant qualified person in the work placement as:
(a)Acting as a mentor;
(b)Observing and providing comments and feedback on the learner’s performance;
(c)Asking questions; and
(d)Providing other relevant information.
[41] Exhibit R3: Volume 2: Tab 8.
The “relevant persons” must also complete forms, known as the “Relevant person/Observer form” (“Observer Form”) and “Observation/Deceleration Checklist” (“Observation Checklist”),[42] with respect to the tasks a student must perform during their workplace training. This form, in some variation, is duplicated for the purposes of each qualification and their units of study
[42] Ibid: Tab 5.
Questions about the Child Education and Care Qualifications
Similarly, the TAS for Certificate III in Early Childhood Education and Care[43] was also a generic document and also contained a spreadsheet outlining how each of the units of the course was to be delivered. More specifically, it detailed:
(a)The mode of delivery – where the training is delivered;
(b)The method of delivery – how the training is presented; and
(c)The assessment method – how the unit is assessed, namely:
(i)Observation – watching videos or having the workplace representative watch the student.
(ii)Questioning – could be done through back and forth communications via the online portal between the student and assessor
(iii)Simulation – case study and role play, particularly where workplace training is not readily available
(iv)Third party – communication from the workplace about the student
[43] Exhibit R4: Tab 6.
The TAS for Certificate III in Early Childhood Education and Care also set out the volume of learning to be completed. Mr Sparrow noted that this exceeded the minimum number of hours required for the course. Mr Sparrow was cross-examined at length about this document, from which it was suggested that the Applicant spent more time assessing the students rather than training them. Mr Sparrow did not agree with that proposition.
Evidence of Ms Gemma Chidlow
Ms Chidlow was engaged by the Applicant to prepare an expert report dated 2 September 2018.[44] The report was lengthy and referred to various pages of the Respondent’s supplementary Evidence Analysis. Ms Chidlow was asked to opine on certain aspects of that Evidence Analysis as it related to various topics under Diploma of Early Childhood Education and Care, including some of the Applicant’s pro forma documents used in respect of the early childhood education and care qualifications. The pro forma documents included, “CHCEE011 Observation Checklist”[45] and “CHCECE019 Observation Checklist”,[46] which are the observer checklists specific to the qualifications in early childhood education and care, the “Confidential Workplace Representative Form”[47] and various samples of student work. These pro forma documents were those sent to the employer who supervised a student’s work placement.
[44] Exhibit A7.
[45] Exhibit A1: Volume 1, A0251-A0259.
[46] Ibid A0320-A0329.
[47] Ibid A0318.
Ms Chidlow has worked in the child care industry since 2003 and, notably, holds a Diploma as an Early Childhood Educator amongst other related qualifications. Her current position is director of an OSCH [Out of School Hours Care] facility at a suburban primary school. The role of director means that Ms Chidlow manages that facility and is employed by the school council, not by the Department for Education.
The report was received into evidence without any objection. However, in cross-examination the Respondent challenged Ms Chidlow’s expertise as she did not hold any relevant qualifications in training and assessment, was not familiar with the Standards and was not familiar with the AQF that governs the volume of learning for certification in Australia. She did not have any experience in auditing.
Counsel for the Applicant then explained:[48]
She’s been asked here as an expert in terms of an industry participant and relevant person in the workplace and as an adjunct to that, what level of instruction they would receive from an RTO and whether or not that’s sufficient for their purposes.
[48] Transcript (17 October 2018), 79.
Hence, the Applicant was relying on Ms Chidlow as an industry participant to opine whether, in her experience, the Applicant’s pro forma forms provided to a workplace when students attend for work placement were sufficient to enable information to be exchanged with the RTO and the assessor, and further, to rebut the Respondent’s suggestion that the forms were inadequate.
The Respondent did concede that the Tribunal could accept Ms Chidlow’s evidence, but only insofar as it related to her role as a relevant person and trainer in the workplace.
Ms Chidlow reported that the Respondent’s pro forma documents were easily understood, covered all circumstances that she would deal with on a daily basis and enabled her to report back, if required, in relation to any training, assessment or observation made of a student who attends her workplace for work placement. There was nothing about the document which, in her opinion, needed improvement. She found the documents to be user friendly and more than sufficient in addressing industry requirements and standards. They were very easy to understand. She said: [49]
[L]ooking at the forms I knew what the student would be able to submit, so yes, it’s okay if they take photos and they use videos or they do a written document or – so I knew that all of those things would be okay for them to provide evidence. And then, I knew that, you know, how to provide – that what was needed – expected of me as a workplace representative to be able to sign them off effectively.
Ms Chidlow said that in some cases the Applicant’s forms were better than those she would receive from other RTOs.
[49] Ibid 82.
Ms Chidlow said that students would be exposed to the framework during their work placements as opposed to having a theoretical knowledge of the entire framework.
The Auditors’ Evidence
The evidence of the auditors is difficult to summarise. They were not guided in questioning methodically from one clause of the Standards to another. Additionally, many of the questions posed and answered did not give rise to an explicit outcome in relation to whether or not the Applicant was compliant with a particular clause of the Standards.
Evidence of Ms Brooke Smith (Née Wade)
Ms Brooke Smith was, at the relevant time of the audit, the assistant auditor to the Applicant’s lead auditor, Mr Wayne Stent.
Ms Smith holds a Certificate IV in Training and Assessment, a Diploma of Quality Auditing, and a Diploma of Vocational Education and Training, amongst other qualifications.
In cross-examination, Ms Smith was taken to the following Australian Government Department of Education Employment and Workplace Regulations:
(a)BSBAUD402B Participate in a Quality Audit;[50]
(b)BSBAUD501B Initiate a Quality Audit;[51]
(c)BSBAUD503 Lead a Quality Audit;[52] and
(d)BSBAUD504B Report on Quality Audit.[53]
[50] Exhibit A2: Applicant’s Tender Documents: Tab 19.
[51] Ibid Tab 20.
[52] Ibid Tab 21.
[53] Ibid Tab 21.
Ms Smith agreed that she had to demonstrate competence in auditing and had knowledge of the Standards. The Tribunal accepts that she demonstrated the relevant knowledge requirements. She was also taken to the AS/NZS ISO 19011:2003, Guidelines for quality and/or environmental management systems auditing (“the Auditing Guidelines”)[54] and in particular, guideline 5.3.1, which relates to audit programme responsibilities. She was asked by Counsel if she agreed that it said that:[55]
A person assigned the responsibility for managing and audit program … should have technical and business understanding relevant to the activities to be audited.
Ms Smith agreed with that summary and also agreed she did not have technical and business understanding for child care; nor did Mr Stent.
[54] Ibid Tab 8.
[55] Transcript (18 October 2018), 93.
Ms Smith was then referred to guideline 3.5.2, which relates to audit program resources, and in particular sub-paragraph (d), and agreed that it reads:[56]
When identifying resources for the audit program consideration should be given to … The availability of auditors and technical experts having competence appropriate to the particular audit programme objectives.
[56] Ibid 94.
Ms Smith was then referred, in part, to guideline 6.2.3 of that document, and agreed that it reads:[57]
The process of assuring the overall competence of the audit team should include the following steps … Selection of the audit team members such that all the necessary knowledge and skills are present in the audit team.
[57] Ibid.
Ms Smith was then referred to guideline 7.3.3, which relates to the specific knowledge and skills of quality management system auditors, she again agreed that it reads:[58]
Quality management system auditors should have knowledge and skills in the following areas … Knowledge and skills in this area should cover sector-specific terminology, technical characteristics or processes and products, including services, and sector specific processes and practices.
[58] Ibid 95.
Ms Smith acknowledged she did not have that knowledge and skills in childcare and could not perform the function of training and assessing childcare learning.
When pressed in cross-examination, Ms Smith was asked: ‘[w]hy are you auditing someone’s training and assessment when you are not current in training and assessing?’[59] She replied, ‘I have current skills in auditing against the standards for RTOs 2015. I do it on a daily basis’.[60] She went on to explain that she was not required to have currency to audit training and assessments. That, she said, is not part of her role. She agreed that an assessor in the field of childcare would be more qualified to make decisions about childcare matters; however, she explained that she looks at the evidence of what the assessor has collected and at the time of the audit and, having regard to the material presented to her, the clauses contained in the Standards were not met in this case. She said that she was qualified to determine whether the assessments accorded with the Standards.
[59] Ibid 97.
[60] Ibid.
The audit was conducted in Mr Sparrow’s lounge room at a table and desk. The latter was set up with computer screen from which documents were accessed. During the audit, Ms Smith liaised with Mr Sparrow and Mr Stent liaised with Mr Suttle. She described Mr Sparrow as cooperative during the audit; however, she and Mr Sparrow were continually interrupted by Mr Suttle, who appeared unsure where the relevant evidence was located within the computer system. These interruptions, she said, substantially delayed the audit.
Ms Smith was cross-examined about the substantial delay in the auditing process. She explained that the delay related to the evidence that Mr Stent had to look through.
She was also cross-examined about the “Audit verification form”,[61] in particular the times that the audit took place. On 5 April 2017 the audit started at 9.05am and ended at 4.00pm, with a total break of 30 minutes. On 6 April 2017, the audit started at 9.15am and ended at 4.30pm with total break time 40 minutes. In the “comments” sections of that document, it is written ‘Subtract one hr for Wayne not auditing’,[62] with what appears to be the initials “BS”, which the Tribunal infers to be Mr Boyd Sparrow’s initials next to that comment. Ms Smith did not recognise the writing in that document. She was not the author of it and said that it may be a matter for Mr Stent to comment on. She said that in her experience it was common for comments to be written by the auditing team and initialled by the person being audited. This document was not put to Mr Stent for comment. It was unclear from cross-examination what significance was to be placed on the document.
[61] Exhibit R6.
[62] Ibid 6.
Ms Smith was also questioned about the Audit Timesheet[63] and again was pressed about the delay in the audit. She said there was ‘some delays by the person that he was dealing with, so I believe he sat around for a little bit’.[64] She was referring to the delays caused to Mr Stent because of Mr Suttle’s difficulty in accessing evidence. She said:[65]
No, we do as much as we can, but if it relies on the RTO providing us certain evidence then sometimes there’s not much more you can do until they’re working with you and showing you where the evidence is … I believe there was a delay with the stuff that [Mr Stent] had to look through.
[63] Exhibit A4: Annexure “BAS4”.
[64] Transcript (18 October 2018), 107.
[65] Ibid 108.
In cross-examination, Ms Smith was asked what was more important; training or learning. She responded ‘I think they go hand in hand’.[66] When pressed again about the Audit Report, in respect of clause 1.1 of the Standards, she confirmed her earlier evidence that she did not look at the amount of training and that Mr Stent focused on that component of the clause. She said she was told not to look at the amount of training and that Mr Stent would focus on that area.
[66] Ibid.
The Tribunal then asked a general question namely:[67]
What documents or evidence are you looking at that is indicative of training and what documents or evidence are you looking at that is indicative of assessment, so you can see if the training and assessment meets the standards?
[67] Ibid 111.
Ms Smith answered:[68]
It can be a range of documents. All RTOs do it differently, so there’s no particular document that we look for. We just rely on the RTO to demonstrate what their method is for training and assessment and what tools they use.
[68] Ibid.
Ms Smith acknowledged that it was permissible for RTOs to use third parties in the process of training and assessment of learners, which was consistent with a ASQA document titled, “Fact Sheet – Using other parties to collect assessment evidence”[69] produced by the Respondent. This fact sheet refers to supplementary evidence, which can include reports from supervisors, colleagues and/or clients, testimonials from employers, work diaries and evidence of training.
[69] Exhibit A2: Applicant’s Tender Documents: Tab 2.
Ms Smith confirmed one of her criticisms was the manner in which the Applicant collected its evidence. She said that the evidence gathered did not meet the requirements of the training package or address the principles of assessing the rules of evidence. She said it was the assessment strategies and practices that did not meet the requirements of the training product. That accords with the primary Evidence Analysis, which reads ‘the RTO did not provide sufficient evidence to demonstrate that it complies with the requirements of clauses 1.1 and 1.2’. [70]
[70] Exhibit R10: Annexure “WS-5”, 2.
In response to questions from the Tribunal, Ms Smith confirmed that she and Mr Stent took a group of sample students and assessed whether or not they were compliant with clauses 1.1 and 1.2 of the Standards. She confirmed that they looked at documents received from third parties. She explained that in looking at performing duties in a workplace environment:[71]
[A] third party can collect the evidence for the RTO’s assessor to use to determine competency, or the RTO can simulate certain components as well, depending on the training package … So the process was that we sampled the student records from a selected amount of units and then we looked at what evidence the RTO’s assessor had gathered to determine competency against the training package requirements. So I believe the RTO used third party evidence as an evidence collection method in this case, and so we used - we looked at all of the evidence that the RTO used to make a competency judgment.
[71] Transcript (18 October 2018), 114.
The Applicant again pressed Ms Smith in cross-examination that she was not qualified within the field of childcare and, by inference, not qualified to audit the Applicant. She repeated that she did not have the competencies required to meet the qualifications of an assessor; however, when asked about a learner, “KVS”, in relation to whom it was reported that the learner ‘did not answer QID35381 and QID35303 to the level defined in the assessor guide, however both questions were marked as correct’.[72] Ms Smith accepted that she was not qualified to say whether the relevant answer to the question was correct or not; however, she explained that the assessor benchmarks which determine competency were not met. She said, ‘the learner’s answer didn’t cover off on what the RTO has determined as competency in their assessor guide’.[73] Ms Smith acknowledged that she could not tell whether the answer was correct but she was able to determine whether the answer aligned with the assessor’s benchmarks. She said what she audited was the assessor’s benchmarks, which is what a RTO use to make a reliable assessment and judgement and what competency looks like. The issue, she said, was that learners did not provide the answers that were required by the assessors guide. She went on to say:[74]
Well, the assessor guide is the RTO’s strategy for ensuring that everything in the unit of competency is covered and that the assessment itself is conducted in accordance with the principles of assessment of rules of evidence ... The non-compliance was that the answer was not to the level defined in the assessor guide.
[72] Ibid 115.
[73] Ibid 116.
[74] Ibid 117-118.
In re-examination, Ms Smith said that the benchmark was the minimum standard to be arrived at to determine competency. She was asked in relation to KVS, what she looked at to reach her conclusion. She answered:[75]
I looked at the assessor benchmarks, which is what the RTO determine as competency through various strategies of industry engagement and so forth, and I compared it to the learner’s evidence that they provided, and determined that it wasn’t to the level defined in the benchmark.
She agreed with the proposition that on this occasion the assessor made a mistake. She was certain the student did not meet the benchmark.
[75] Ibid 119.

Ms Smith said that she did not have any qualifications in childcare. She did not hold herself out to be a person who could audit a childcare centre for registration. However, her qualifications are about training and assessment against the Standards for childcare. She agreed with the proposition that she does hold herself out as having qualifications and experience in matching what the RTO says is required to have a qualification in childcare and assessment. She matches the requirement of the training package to the standards in the AQF. She said she looks at how a student is trained, not the subject they are trained in.
Ms Smith was again asked about interruptions which delayed the audit substantially. She said there was difficulty on locating evidence. Mr Suttle did not know where certain evidence was located. She did not receive hard copy documents, only electronic documents. She agreed with the proposition that Mr Suttle had some difficulty manipulating the electronic record to provide information required.
Following the audit, Ms Smith provided her findings to Mr Stent to include as part of the Audit Report. She believed the non-compliances identified were critical.
Evidence of Mr Wayne Stent
Mr Wayne Stent was the lead auditor and was called by the Respondent to give evidence. His affidavit and reply to Ms Chidlow’s report[76] were tendered as part of his evidence in chief.
[76] Exhibit R12.
Mr Stent holds auditing qualifications which he said are appropriate and accord with the Respondent’s required standards in auditing.
As lead auditor, Mr Stent was responsible for managing the audit. He had originally contacted Mr Sparrow in August 2016 and scheduled the audit from 28 to 30 November 2016. However, on 23 November 2016 when Mr Sparrow had telephoned him to inform him that he was ready for the audit, Mr Stent advised Mr Sparrow that the audit would need to be postponed. The audit was rescheduled for 5 and 6 April 2017 and was conducted on those days using the new audit model.
Mr Stent explained the Respondent’s auditing procedure. In reference to clause 1.1 of the Standards, he was required to confirm that the Applicant’s training and assessment strategies and practices accord with the Standards. This included the amount of training the Applicant provided to enable a learner to meet all of the requirements of the relevant course which is found in the unit of competency. He needed to be able to confirm that the learner had received an appropriate amount of training that has been based on their existing skills knowledge and experience. He said that he looked at the relevant TAS for the qualification and then the documents that were referenced within that. This included the Observer Form and Observation Checklist, which was provided to the work placement supervisors where the student undertook work experience. He assessed that document with respect to the Standards.
Mr Stent was referred to his supplementary Evidence Analysis and, in particular, the following passage in relation to Certificate III in Early Childhood Education and Care:[77]
There is insufficient information on the characteristics of the target clients to confirm that the RTO has determined the amount of training it will provide to each learner with regard to:
·their existing skills, knowledge and experience of the learner; and
·the mode of delivery
[77] Exhibit R10: Annexure “WS-6”, 4.
He explained that the key clients to undertake this Certificate course were ‘simply described as people wishing to move into the community sector working in childcare’.[78] This did not detail their experience and, by inference, suggested they had no existing skills. If they had no existing skills, they should have received more training closer to that standard in the AQF, when compared to a person with some existing relevant skills.
[78] Transcript (18 October 2018), 125.
The TAS for each qualification needed to identify how the RTO came up with the amount of training to be provided based on existing skills and this needed to be done for each individual learner. The documents he looked at did not provide that information. He said that the TAS documents ‘forms the overarching umbrella’[79] from which he expected that each individual learner would have a unique training plan developed referable to their existing skills, knowledge and experience. He said that was ‘totally devoid within the system that I looked at’.[80]
[79] Ibid.
[80] Ibid 126.
In his supplementary Evidence Analysis, Mr Stent also reported that in respect of the work experience placement:[81]
There is insufficient information for ‘third parties’ detailing the practical skills training that must be delivered on the job and their responsibility in the delivery of that training.
[81] Exhibit R10: Annexure “WS-6”, 4.
He explained that the Applicant did not have its own facilities and infrastructure to deliver the practical components of the courses referred to. That responsibility fell with the work placement where the student undertook work experience. The Applicant’s TAS referred to practical “on the job” training, but there was insufficient information provided to those workplace staff, such as detailing what the training requirements are, and the amount of training required for each of those individual learners. Mr Stent said it all hinged on the Observer Form and Observation Checklist, which was primarily aimed at gathering evidence, but not aimed at training and assessment.
Mr Stent referred the Tribunal the page two of that document, which reads:[82]
The purpose of the relevant person observer checklist is to allow the learner to undertake assessment activities in the workplace or a relevant simulation under the observation of a relevant qualified person who may be a manager, supervisor, relevant industry participant and so forth, who has the industry experience and knowledge to be able to provide an opinion on the learner’s performance. This opinion is recorded in the form of this observation checklist along with any associated evidence and is then returned to the assessor who uses this in conjunction with other evidence to determine the learner’s overall competency within a unit.”
[82] Exhibit R3: Volume 2: Tab 5, 78.
Mr Stent was critical of this form. He said in respect of training for each learner:[83]
[I]t would be expected that the workplace would be provided with the amount of training, the hours to be spent as determined in the RTO’s training and assessment strategy, and some sort of training plan with how that is to progress, not simply defined through an evidence gathering tool, because that’s assessment, and training and assessment must be clearly separated … The amount of training does not include assessment or research activity, so it’s - it’s all just melded into one document.
[83] Transcript (18 October 2018), 128.
Also within the Observer Form and Observation Checklist, the role of the relevant person is described,[84] and includes supervising and observing the learner and providing opinion testimony of the learner’s performance by completing the Observation Checklist
[84] Exhibit R3: Volume 2: Tab 5, 78.
Mr Stent acknowledged that although part of this work placement function could be construed as training he regarded the Observation Checklist to be about evidence gathering and lacked substantial and relevant information about how learning is delivered, the content of such learning, how the demonstrated skills are relevant to and considered by the assessor amongst other things.
In cross-examination, Counsel suggested to Mr Stent that there are other things to be taken into account. Mr Stent acknowledged there were some online questions, but this form was the only document provided to the workplace by the Applicant. He asked Counsel to show him where other documents were within the large volume of material. He said that he believed they did not exist. Counsel did not refer Mr Stent to any other document.
It was also suggested to Mr Stent, in respect of the concept of “training plans”, such plans were only required for funded training and the Applicant’s training was not funded. Hence, because the Applicant was not funded, there was no need for a training plan to be provided. No explanation was given to the Tribunal about what “funded training” is, nonetheless, Mr Stent said that there still needs to be a mechanism by which trainers and assessors are aware of what the individual needs of the students. He said there needed to be a document, analogous to a training plan, which sets out the amount of training, the type of training, any training events and the substantive learning to be delivered to students.
Mr Stent was taken to the TAS document for the Certificate III in Fitness, and in particular a pro forma spreadsheet form titled, “Unit of Competency Volume of Learning”.[85] This form nominates the hours to be spent on various activities such as, but not limited to, reading and research, practice, and assessment activities. Again, Mr Stent was critical of this pro forma document; he said it was difficult to understand. Given the Applicant did not have learning facilities, such as a gymnasium, for the purpose of Certificate III in Fitness, it relied solely on the work placements organised and attended by students. The Applicant did not have any process to engage with workplaces and it was up to the student to go to the work placement supervisor with the form and get tasks signed off. The form, he said, made it impossible to see what practical application of learning is performed in the workplace. He said the Applicant is required to assess the existing knowledge, skills and experiences of the student enrolled in the qualification, and then identify an amount of training required specific to that student. That, he said, has not been done. What the workplace received was only the pro forma Observer Form and Observation Checklist. There is no tailoring of a course relevant to the needs of a particular student.
[85] Ibid: Tab 4, 63.
Mr Stent also referred to the contradictory aspects of the spreadsheet form. For example, it defines “practice” to mean:[86]
This is the time a learner should spend on practice activities prior to formal assessment. This is not based on practical activities, but simply the practice or rehearsal a learner might reasonably undertake during the process, and might include writing an answer and then rewriting it, or practising skills prior to having them assessed, or simply practising things to ensure they are doing it correctly.
[86] Ibid.
He said that this was contradictory because it talks about not being based on practical activities, and yet it is about practising the skills to ensure they are being done correctly. He said that he was not sure, in the case where the Applicant did not have the facility to deliver practical skills training and to develop and acquire those skills, how this spreadsheet, and training generally, was to be interpreted and demonstrate compliance with the Standards.
Mr Stent was taken to other pro forma documents of the Applicant. Without going to each in detail, he was generally critical of them because they did not provide clarity or detail including how the student was taught, trained or assessed. For example, the Observer Form and Observation Checklist did not detail such information and it could not be found in other documents produced by the Applicant. Particularly, where the Applicant did not have the training facility, it was not clear how the student completed the components of the unit of study.
Mr Stent was taken to a bundle of documents annexed to his affidavit in relation to student, DR, who was undertaking a Certificate III in Fitness.[87] That bundle of documents was considered during the audit. They were provided by DR to the work place for her placement. Within this bundle of documents, were two industry logbooks of DR relating to two units of competency within the unit “Energy Health Concepts”. They were signed and dated 3 February 2017 (“first logbook”)[88] and 17 February 2017 (“second logbook”)[89] respectively.
[87] Exhibit R10: Bundle of Student Records for “DR”.
[88] Ibid A1222-A1234.
[89] Ibid A1327-A1340.
In reference to DR’s first logbook, Mr Stent said that, noting the RTO’s obligation to identify the amount of training received, the table was incomplete. The section relating to the proposed duration of the placement is left blank. Consequently, Mr Stent concluded that the Applicant did not identify an amount of practical training that was meant to be completed during the work placement of DR. He concluded that because there was no proposed duration, the work placement supervisor was not given any information about the amount of training time required.
Further, DR’s first logbook contains a spreadsheet which was to be completed during the work placement. This spreadsheet recorded the date, start and finish time, total hours, activities undertaken each day and the supervisor’s signature. Under the “activities” heading, the majority of the recorded 61 days of work placement are endorsed ‘setup class, greet people, facilitate group sessions, get forms filled in for new clients, pack away class equipment’,[90] together with occasional changes in the wording. Mr Stent said that it did not identify what was taught to the learner, bearing in mind this was the document that was meant to capture the amount of training provided and the content of that training. He said that the document told him nothing about the training received by the learner. It was devoid of any content detailing what was actually trained, the context of the training, what demonstrations occurred or the timing of practice events or assessment events.
[90] Ibid A1225-A1234.
DR’s second logbook also records the same 61 days of work placement. The logbook entries for both units are identical. Further, there were photographs provided by DR in her logbooks, but Mr Stent said they did not convey the behaviour that was under consideration, how they were used to judge the student’s performance or demonstrated performance against the requirements of the unit of competency. Mr Stent said he did not know what they were meant to portray. He went on to say that an assessor would have to confirm that the student is demonstrating a skill. There was nothing to link the photograph to an observable behaviour that was relevant to the unit of competency.
Mr Stent was then referred to a bundle of documents in relation to learner, KQH.[91] Mr Stent made similar complaints about the sufficiency of the documents as they related to that student. He was unable to conclude from the photographs that they were valid reliable evidence or whether they referred to learning or practice of the relevant skills. He could not confirm what training took place. He further explained that the material did not enable him to be satisfied that the student satisfied the National Quality Framework which must, in accordance with the AQF, demonstrate a certain level of breadth, depth and complexity of their knowledge relevant to the learning qualification, which, in the case of KHQ was a Diploma qualification.
[91] Ibid: Bundle of Student Records for “KQH”.
Mr Stent was then taken to the document titled, ‘SISFFIT001 Provide health screening and fitness orientation” [92] which related to the Certificate III in Fitness. Here, he said, there was insufficient evidence in the material provided that enabled an assessor to determine if the student met the assessment conditions. He further explained that students were required to take body measurements of clients, yet there was no evidence of students performing that task. In referencing the material used by the student, the sample document contained measurements of clients pre-populated in the document and did not provide evidence demonstrating that the student took measurements of the client.
[92] Exhibit R3: Volume 2: Tab 3, 23 – 30.
Mr Stent confirmed that during the audit, the Applicant provided all the evidence electronically. He accepted that it was difficult for the Applicant to provide the evidence in a hard copy format and confirmed that he and Ms Smith viewed all material digitally. Mr Stent that it was virtually impossible to view any of the documents because the Applicant’s consultant, Mr Suttle, could not find anything in the system. He said that he worked with Mr Suttle to help him extract the relevant evidence from the system but they had to continually interrupt Mr Sparrow so that he could identify the correct information.
Counsel suggested to Mr Stent that this was not the case and put it to him that he wanted to see the documents in hard copy format and even had an allocated printer to be able to print documents. Mr Stent said that the information was not “flowing”. He expected Mr Suttle to be conversant with the Applicant’s processes and systems and resources but he was virtually unable in every instance to locate the electronic documents on the Applicant’s computer system.
Mr Stent was cross-examined about his qualifications. He confirmed he was the lead auditor and currently held the position of lead regulatory officer for the Respondent, which he has held since 2012. He also held other positions in auditing continuously for 16 years. He was taken through his curriculum vitae. He confirmed that he performed the audit of the Applicant in 2015, but said that had no bearing on whether or not he was allocated the 2017 audit. He was allocated the 2017 audit because there are limited auditors in South Australia. He said that the audit was postponed from an earlier date. There was no suggestion that the postponement was without good reason.
Mr Stent was referred to the guideline 5.3.1 of the Auditing Guideline, which relates to program audit responsibilities. Mr Stent, like Ms Smith, agreed that he was not trained in the courses that were the subject of the audit. He said he was an ISO [International Organisation for Standardisation] quality manager and was not obliged to have the expertise in the relevant subject, or to have a person with such expertise within the audit team. He did not know whether Ms Smith had any expertise in the courses she audited. He had not considered the wording in guideline 5.3.1 but went on to explain that it did not relate to the auditing of the standards for RTOs. What was required was a Certificate IV in Training and Assessment. He had a Diploma of Quality auditing and the expertise required by the Respondent. What he was doing was auditing the Applicant’s training and assessment practices.
Mr Stent confirmed the evidence of Ms Smith that he apportioned the workload to each of them, and that within a particular qualification it was not uncommon to subdivide auditing clauses of the Standards so they could use their resources effectively. He also confirmed that following the difficulties arising out of the auditing process, and upon realising that they were not going to complete the audit, at his request, it was agreed that the evidence would be provided on a USB stick. Mr Stent confirmed in his affidavit that Mr Sparrow and Mr Suttle were both cooperative in loading evidence onto the USB stick, but when he returned to the office he realised he did not have the USB stick with him. [93] He said he contacted Mr Sparrow to see if it was left at his home, but it was not. Hence, Mr Sparrow was given additional time to provide that material. Mr Stent acknowledged that he was meant to have taken the USB stick with him. He could not explain what happened to it.
[93] Exhibit R10, [21].
It was accepted that Mr Sparrow, who had not sat through the audit with Mr Stent, then did his best efforts to recreate the required evidence. Mr Sparrow was not the person who put the material together on the USB stick, but Mr Stent said that Mr Sparrow knew what he was looking for because he had been present throughout the audit process and kept coming backwards and forwards to both he and Mr Suttle to assist in locating relevant documents. Mr Stent said that he did not look at the contents of the USB stick; nor did he direct what was to be provided on it. He requested full evidence of assessments of students and said that Mr Sparrow would have known which student records were required. He said it was not his responsibility to find the evidence and that Mr Sparrow knew what was required.

It was not disputed that the use of third party work placement supervisors to collect evidence for the use of the Applicant’s trainers and assessors was a permissible practice. However, there was dispute between the parties as to the purpose of student work placements. The Respondent submitted that the purpose of the work placements was to provide training to the Applicant’s students for free. Conversely, the Applicant submitted that work placements were to enable students to be mentored in a workplace whilst gathering evidence on student performance to be submitted back to the Applicant for review from which an assessor would determine student competence.
Hence, in the case of Certificate III in Fitness, the Applicant had no gymnasium and relied on third party work placements for students to gain practical experience. But, as Mr Stent explained, and the Tribunal accepts, the evidence provided to the auditors as it related to training was in respect of the student work placements. It was on this basis that a student was then certified as competent by an assessor. Therefore, it was concluded by the Respondent that work placements were used to train students. Conversely, if the Applicant’s position that the work placement was a mentoring opportunity for students is accepted, then it can be concluded that evidence of learner’s compliance with the required hours for the amount of training was not produced to the auditors at the audit or to the Tribunal at the hearing.
Clause 1.2 of the Standards provides that, for the purpose of clause 1.1, the RTO is to determine the amount of training they provide for each learner, having regard to their existing skills, knowledge and experience. The RTO must also determine the mode of delivery and, where a full qualification has not been delivered, the number of units and/or modules that are proportional to the full qualification.
Hence, the Applicant is expected to make inquiry in respect of each learner and determine the amount of training to be delivered to each. The Tribunal was not directed to an occasion when that procedure took place in relation to any of the learners whose documents formed part of the audit, or any learner who received rectification training from the Applicant. The Tribunal has not been directed to evidence which considers any learner having existing skills, knowledge and experience and were assessed against the Standards. This is surprising, particularly when given that two of the qualifications under consideration were the Certificate III and Diploma in Early Childhood Education and Care. The evidence before the Tribunal was that there were common units of competency between the Certificate III and Diploma qualifications. Therefore, students engaged in a Diploma qualification would expect to have some adjustment made to the amount of training they received to take into account existing skills, knowledge and experience.
The Tribunal accepts Mr Stent evidence in relation to training and assessment. In his supplementary Evidence Analysis,[137] he states:
The evidence provided does not confirm that the training and assessment strategies and practices including the amount of training they provide are consistent with the requirements of the … training packages.
[137] Exhibit R10: Annexure “WS-6”, 2.
The Tribunal is not satisfied on the evidence that the Applicant undertakes any practice and procedure directed to determining the amount of training to be provided to a learner having regard to the requirements of clause 1.2 of the Standards.
Clause 1.3 of the Standards
This clause related to the RTOs sufficiency of trainers and assessors, educational and support services, learning resources and facilities and equipment.
The Applicant’s sole director, Mr Sparrow, was asked how many students were enrolled with the Applicant at the time of cancellation. He initially said he did not know and then gave an estimate of somewhere between 200 and 800 students. He said that he had 11 trainers and assessors throughout Australia. Mr Sparrow said:[138]
[T]he system we have allows for enough training and assessment, we manage their caseloads, their workloads, and the system, because of the intimate link, allowed for them to go through questioning a lot faster than normal. It was a development in technology that no other RTO had been using that point of time as well.
This purported system was not demonstrated by reference to any material before the Tribunal.
[138] Transcript (17 October 2018), 18-19.
Mr Sparrow explained the process when a new person is enrolled with the Applicant. He said that the Applicant develops training programs to accommodate the new learner, having regard to the learner guide and its contents. They take into account the time it takes for the learner to read the guide and any video content and create a training program. He said that as a RTO, the Applicant ensures that every learner has the ability to apply recognition of prior learning. Then they do a needs based analysis assessment with every individual before they’re allowed to enter into the program. He said the purpose of this was that no student would have to retrain or redo any learning. Whatever the student assessment showed, the Applicant would then meet the gaps through an online program and then the training plan then starts in succession order of one unit at a time, moving down the list. He went on to explain that the learner will access learning material online; from there they would look at videos which demonstrated the particular skill required for a unit of study. From there, the student gets set a task in which they role-play and film themselves performing that skill. They then attend a work placement and observe the skill and practice it themselves. As with much of Mr Sparrow’s evidence, he explained, in theory, how the Applicant’s business operated; however, the Tribunal was not taken to any material which corroborated that this theoretical practice and procedure was performed in relation to a learner or at all. Statements of theoretical practice and procedure did not assist the Tribunal in accepting that this clause or other clauses of the Standards were complied with.
In relation to the 11 trainers and assessors employed by the Applicant, the Tribunal was not provided with any of their details, qualifications or industry currency. No satisfactory evidence was provided to the Tribunal in respect of the training and assessment work undertaken by the trainers and assessors. There was no evidence about which State each trainer and assessor resided in Australia. There was no evidence about third party trainers and assessors engaged by the Applicant to provide training in disciplines in which the Applicant was unable to provide at its building premises. There was no evidence demonstrating the subsequent assessment of that external training. There was no evidence from Mr Sparrow, or from the Applicant, that enabled the Tribunal to accept what onsite training the Applicant was able to provide at its business premises and what third party training was required and the assessment of that evidence.
The Respondent referred to the ratio of trainers and assessors to learners. In particular, that if the Applicant had 800 learners at the time of deregistration then each of the 11 trainers and assessors would be responsible for 72 students. Insofar as Mr Sparrow said that a learner would be in contact with an assessor up to 20 times a day, the Respondent submitted that evidence was implausible, and even if each learner only contacted his or her assessor for 10 minutes per day, that would result in 12 contact hours, not including working on students assessment tasks.
The evidence about the trainers and assessors ability to deliver training and assessment in relation to each unit of competency was unsatisfactory. Mr Sparrow’s evidence about the Applicant having sufficient educational and support services to meet the needs of trainers and assessors, that learners were able to meet the requirements of each unit of competency regardless of location and the ability of the Applicant to provide facilities for learners to engage in training and assessment was all theoretical.
The fact that Mr Sparrow did not know to any degree of precision how many learners were engaged with the Applicant at the time of deregistration is of concern. Mr Sparrow gave evidence that if he needed more trainers and assessors he could get them. Again, this was speculative.
The Applicant has not provided evidence that the Tribunal can accept that at the time of the audit or since, clause 1.3 of Standards was complied with.
Clauses 1.5 and 1.6 of the Standards
Clauses 1.5 and 1.6 of the Standards relate to the obligation of a RTO to engage with industry. Clause 1.5 of the Standards obligates the RTO to ensure the training and assessment practices are relevant to the needs of industry and are informed by industry engagement. Clause 1.6 of the Standards requires the RTO to implement a range of strategies for industry engagement and systematically uses the outcomes of that engagement to ensure that the training and assessment practices and resources are relevant to the industry, and that its trainers and assessor have the relevant industry skills.
In its written submissions, the Applicant acknowledged that it did not put any issue with respect to these clauses to Mr Stent or Ms Smith in cross-examination and therefore relies on the face of documents tendered into evidence in respect of these clauses.
The Applicant correctly submits that it was not in contention that the Applicant undertook industry consultation. This was confirmed In Mr Stent’s Evidence Analyses. The issue raised by the Respondent was that the evidence provided did not confirm the obligations referred to in clauses 1.5 and 1.6 of the Standards. Mr Stent explained this was because:
(a)The records of industry consultation did not provide sufficient detail that could be used by the Applicant to inform the training and assessment practices and resources; and
(b)The assessment tools (reviewed under clause 1.8 of the Standards) did not confirm that the Applicant systematically used the outcome of industry engagement to inform the assessment practices with respect to the assessment benchmarks, to judge the quality of the learner’s performance relevant to the unit of competency training and assessment.
Mr Stent gave an example of the revised relevant Observer Form and Observation Checklist. In respect to the task ‘Instruct exercise to older clients’,[139] he reported that the revised checklist included three new guidance criteria, however, those three guidance criteria were taken directly from the training package and do not demonstrate that the Applicant systematically used the outcomes from its industry engagement to inform the assessment resources with respect to the selection and monitoring of the range of equipment for the client’s functional ability. Mr Stent referenced older clients who have mobility problems, risks of falls or frailty that may stem from a number of medical conditions. He reported that the planning template in the Assessor Workbook lists a range of equipment under a number of headings, but there was no information about the appropriateness of each piece of equipment being considered relevant to the client’s functional ability. After giving further examples of non-compliance, Mr Stent wrote in his supplementary Evidence Analysis:[140]
[T]he checklist simply restates the performance evidence requirements direct from the package and has not been informed by industry.
[139] Exhibit R3: Volume 2: Tab 5.
[140] Exhibit R10: Annexure “WS-6”, 16.
In written submissions, the Applicant referred to a number of documents.
The record of the industry consultation process is recorded on a pro forma document, titled “Industry consultation of the TAS and Assessment Resources”.[141] This form was issued to a number of industry organisations for the purpose of industry consultation in respect of the Applicant’s TAS. The form enables industry advisors to tick “yes” or “no” in response to statements posed by the Applicant. There are seven statements of fact which require a “yes/no” answer in respect of the Applicant’s TAS arrangements. There is a small section for the industry consultants to provide feedback. Further, Part B of the document provides a further 12 statements requiring a “yes/no” answer in respect of the validation of the Applicant’s TAS as well as another comments section. The form also gives the opportunity for the industry consultant to provide general feedback to the Applicant.
[141] Exhibit A2: Applicant’s Tender Documents: Tab 27.
In written submission, the Applicant referred to the industry consultation of Ms Preston, a team leader of “Stepping Stone”.[142] In the form, the statements of fact provided on the form are all marked “yes” by Ms Preston. The comments sections read:[143]
[W]ith the combined use of comprehensive learning materials, video content, third-party reports and instructor led training I believe this will ensure students will have the skills and knowledge required … the increase in practical hours and exposure will benefit students.
[142] Ibid ASQA0674- ASQA0675.
[143] Ibid ASQA0674.
The Applicant submits that, amongst other things, Ms Preston’s answers and comments on her form demonstrates that she had previously been consulted and the Applicant had implemented her past recommendations. Further, that the handwritten comments indicate the Applicant had made changes to improve its training and assessment practice. The Tribunal does not accept that submission. The comments do not, on their face, demonstrate prior consultation with the Applicant or the implementation of change. The comments are ambiguous and open to interpretation, for example, that Ms Preston and Mr Sparrow had discussions on the day of consultation and the handwritten comments gave clarity to the answers to the two statements referred to, and the comments were intended to give explanation as to why she marked “yes” in response to the statements.
If the Applicant wishes to submit that prior industry consultation with Ms Preston occurred and gave rise to the Applicant implementing recommendations, evidence of that prior industry consultation should have been produced such that the document before the Tribunal was given context, and was clear and unambiguous. This, together with evidence of the implementation of the recommendations might then enliven a reasonable inference that prior industry consultation had been undertaken and the recommended changes implemented.
Ms Preston’s general feedback reads:[144]
Self paced training a bonus for people already working in the industry … Agree with students doing more practical hours”.
[144] Ibid ASQA0675.
Ms Preston approved the validation of the Applicant’s TAS. She signed and dated the document 15 April 2015. It has not been signed by the Mr Sparrow, as the Applicant’s RTO manager. There is no evidence before the Tribunal that the recommendation of increase in practical hours has occurred.
The Applicant, in written submission, also refers to an email chain exchange between Mr Sparrow and Ms Stewart of “Goodstart Hackham”.[145] The email chain references an appointment between them on 14 September 2016 and then Mr Sparrow summarised the matters arising from their discussion and areas for improvement that could be implemented.
[145] Ibid ASQA0677-ASQA0678.
The Applicant relies on the email as further evidence of industry consultation. I accept that submission. Further, the Applicant points out that this consultation occurred approximately six months prior to the audit and it would be premature to expect a final outcome to the changes discussed. I accept that submission.
The Tribunal accepts that the Applicant engaged in industry consultation. The Tribunal also accepts that in respect of the consultation with Ms Smith of “Stepping Stone”, prior recommendations had been implemented. However, what those recommendations were, how they were implemented and whether they related to the training and assessment practices is not explained on the evidence before the Tribunal.
These two documents before the Tribunal suggest that, in the case of the former a pro forma document was provided to the industry consultant for completion. How the industry consultant was informed to enable her to answer the statements is not clear. As for the email correspondence with Ms Stewart, this followed an in-person meeting but again how the industry consultant was informed about the Applicant’s delivery of its training and assessment is not clear.
These two documents do not demonstrate a range of strategies for industry engagement and systematic use of the outcome of that engagement to ensure industry relevance to the Applicants training and assessment strategy, practices and resources; or that they inform the current industry skills of trainers and assessors. The documents were on their face, too vague to demonstrate compliance with clauses 1.5 and 1.6 of Standards.
The Applicant referred to Mr Stent’s criticism of the Applicants industry consultation for Certificate III in Fitness, namely that the Applicant:
(a)Failed to demonstrate it systematically used outcomes of industry consultation to inform its assessment resources, assessment instruments and assessment requires;
(b)Did not show the appropriateness of each piece of equipment considering the clients functional ability,
(c)Did not show sufficient detail on the outcome of industry engagement to confirm assessment tools had been informed by industry, and
(d)Does not identify the units of competency to which the consultation did not relate, nor the resources and assessments not reviewed.
The Tribunal accepts those criticisms. They were not remedied by evidence before the Tribunal.
The Applicant referred to three further records of industry consultation. First, a pro forma industry consultation forms completed by Mr Hayes of “Trend Fitness Jetts Gym” dated 17 March 2017.[146] All the boxes are marked “yes” and the author’s comments are very complimentary of the Applicant. The overall feedback provided was positive and no recommendation for improvement was made. The document was signed by the author and Mr Sparrow. The statement, ‘If involved in previous validations, have recommendations been implemented appropriately’[147] is marked “yes”. There is no evidence detailing what the recommendations were, how they were implemented or how the author was able to confirm they were implemented.
[146] Ibid ASQA0679-ASQA0681.
[147] Ibid ASQA0681.
The second was the same pro forma industry consultation form completed by Mr Ryan Sparrow of “SparrowFit” dated 13 August 2017.[148] Mr Rayan Sparrow is the son of Mr Boyd Sparrow. No issue was taken about the familial relationship and the use to be made of the document. Again, all boxes were marked “yes” and the author’s comments are very complimentary of the Applicant. The industry feedback was very positive and no recommendations for improvement were made. The document was signed by Mr Ryan Sparrow and Mr Boyd Sparrow. Again, the form indicates previous recommendations have been made and implemented but no further evidence about that was before the Tribunal.
[148] Ibid ASQA0682-ASQA0685.
The third and final document reference in the Applicant’s written submission was the same pro forma industry consultation form completed by Mr Burkett of “One Mind Defence Systems” dated 1 February 2017.[149] Similarly, all statements are marked “yes” and any comments and feedback provided are positive.
[149] Ibid ASQA0686-ASQA0688.
In the Applicant’s written submissions, the Tribunal is referred to a passage from the Users Guide, which reads:[150]
There is no specific method or approach you must use to conduct your industry engagement
[150] Exhibit A2: Bound Booklet, 46.
That sentence on its own fails to give it context. The next sentence reads:[151]
However, you should document your RTO’s engagement strategies and activities to demonstrate the alignment between industry needs and your strategies, resources and practices.
[151] Ibid.

When considered as a whole, the pro forma documents demonstrate some level of communication with industry. However, the Tribunal has not been directed to strategies and activities to demonstrate the alignment between industry needs and the strategies, resources and practices. The documents, on their face, are wholly unsatisfactory.
By reference to these pro-forma industry consultation forms, the Tribunal is satisfied that industry consultation has occurred. What is unclear is the exchange of information or method of consultation that enables the industry advisor to answer “yes” to the statements contained within the form. For example, the statement ‘The course structure and the elective units chosen are relevant to current industry requirements in the local area’ are all answered “yes” by all industry consultants. Similarly, the statement ‘The trainer/assessors have current industry knowledge and skills directly related to the course’ are all answered “yes”. Yet it is not clear how the author of the form received information that formed the basis for a response to be given.
In respect of each industry consultation form, there is reference to previous recommendations having been made, and confirmation they have been implemented appropriately. Yet there is no evidence before the Tribunal with respect to what the recommendations were, how and in what manner they were implemented, how that was communicated to the author and whether they complied with clause 1.6 of the Standards.
On the face of the documents, the Tribunal accepts that industry consultation has occurred. However, there is insufficient evidence provided which the Tribunal can accept that clauses 1.5 and 1.6 of the Standards have been complied with.
Clauses 1.8 and 3.1 of the Standards
Clause 1.8 of the Standards is directed to a RTO implementing an assessment system that ensures that assessment, taking into account recognised prior learning:
(a)Complies with the assessment requirements of the relevant training package or VET accredited course; and
(b)Is conducted in accordance the principles of assessment and the rules of evidence contained in Tables 1.8-1 and 1.8-3 of the Standards respectively.
The Applicant is required to be legally compliant at all times.
Clause 3.1 of the Standard provides that a RTO only issues certification documents to learners who have been assessed as meeting the requirements of the training package as specified in the training package or VET. Non-compliance with clause 1.8 of Standards will, as its consequence, mean non-compliance with clause 3.1 of the Standards.
Mr Stent in his affidavit, detailed two reasons for non-compliance, namely:
(a)That the assessment tools provided for the relevant units of competency did not confirm sufficient, valid and reliable evidence will be gathered and used by the Applicant’s assessors to certify a learner competent against the unit of competency requirements; and
(b)A review of the assessment tool identified that inadequate information and lack of practical guidance is provided to relevant persons, being the work placement supervisors, to ensure sufficient, valid and reliable evidence will be gathered on behalf of the Applicant’s assessors of the learners completing the tasks.
The Tribunal has referred, in reference to clauses 1.1 and 1.2 of the Standards, to the Applicant’s training and assessment of learners. The evidence was wholly unsatisfactory. The functions to be performed under the “umbrella” of learning in relation to each unit of competency were not clearly identified. To the extent that material was sent to those in the workplace engaged in work placements, they were unclear in identifying what tasks the learner was to demonstrate and the hours to be performed in relation to each task. The material returned to the Applicant’s assessor, such as photographs provided by the student, could not be referenced to a required task to be demonstrated in the unit of competency. Other material relied on by the assessor to certify competence of a student, such as the duplicated material provided in relation to the learner DR, were poorly composed, and absent of further explanation from the assessor. The Tribunal does not accept the material demonstrated compliance with the assessment requirements of the relevant TAS. The use of pre-populated documents with the absence of evidence of actual demonstration of a task does not assist the Tribunal in ensuring that a learner was properly assessed or that they demonstrated compliance with the required task for the unit of competency. The Tribunal has not been taken to evidence of recognised prior learning of any student, or pre-learning assessment of a new student and the tailoring of the relevant unit of competency to the needs of the learner.
Knowing the issues to be determined at the hearing and the need for evidence to address the findings of the auditors, it is unfortunate that such energy has been directed to the various tensions between the parties to the exclusion of assisting the Tribunal to have a clear and unambiguous understanding of each stage of the process of learning and assessment and compliance with the Standards.
Given the absence of such evidence, the fairness, flexibility, validity and reliability principles of assessments referred to in Table 1.8-1 are not satisfied.
Table 1.8-2 relates to the rules of evidence. This is directed to the assessors’ assurance that a learner has the skills, knowledge and attributes required to meet competency and that the assessment evidence enables a judgement to be made of the learner’s competence and that the evidence presented for assessment is the learner’s own work.
Having regard to the whole of the evidence ,the Applicant has not demonstrated that an assessor could be so assured as required in Table 1.8-2. There is simply not enough relevant evidence before the Tribunal. Therefore, the Applicant has not provided enough evidence to prove compliance with clauses 1.8 and 3.1 of the Standards.
Other Matters
In considering whether it is appropriate to cancel the Applicant’s registration under the NVR Act, it is necessary to consider a number of factors. Mr Sparrow said that he did not agree with much of the findings contained in the Evidence Analyses or the Audit Report. Nonetheless, he took some remedial action to address perceived non-compliance and undertook a process of rectification.
In Mr Sparrow’s witness statement, he detailed the student rectification[152] and document rectification[153] procedure. However, the only document which was before the Tribunal was a pro forma template letter to be used for the purpose of communicating with those learners who needed to be considered for rectification. Copies of actual letters sent to the learners, and any student rectification that followed in relation to each after receipt of such letter was not before the Tribunal. Mr Sparrow did not know if such evidence was contained in the material provided to the Tribunal.
[152] Exhibit A3, [40]-[47].
[153] Ibid [48]-[57].
Mr Sparrow referred in his statement to learners, DR and KQ, who on the face of their record required follow up inquiries to be made, including liaising with the assessor to enable competency of each to be deemed compliant. There was no evidence from the assessor or any documents provided that corroborated the statement of Mr Sparrow.
Non-compliance with NVR Act obligations and, in particular, in the assessment and training of learners is serious. Those learners who transition into the workplace are expected, by their qualification, to be competent and to be able to discharge their required duties competently and professionally. In the case of the Applicant, those qualifications that were the subject to the audit include a Certificate III and Diploma in Early Childhood Education and Care. Families who place their children in an early childhood care environment are entitled to expect their children to be in the care of appropriately qualified practitioners.
In the Certificate III in Fitness, the learner is expected to have the required skills within that qualification, which includes dealing with the elderly. The health and wellbeing of members of the public demand that those who engage as practitioners in that work are appropriately qualified.
Further, it should be noted that amongst the 10 qualifications taught by the Applicant, is a Certificate IV and Diploma in Work Health. Similarly, it is of paramount importance that only appropriately qualified persons may assume the responsibility of engaging in the workplace health and safety profession.
The audit identified, amongst other things, that the Applicant did not provide evidence to establish that training and assessment strategies and practices were consistent with training packages and did not enable learners to meet the requirements of each unit of competency for the qualification in which they were enrolled. The failure to provide such evidence enlivens the serious concern that those whom the Applicant has deemed qualified to engage in their chosen work within the community were not qualified to do so. This puts members of the public, including children and the elderly, at risk. This is unacceptable. This exposes learners who believed themselves qualified, employers who engaged those learners and the reputation of the industry in which they are engaged at risk; and the reputation of the relevant Australian industry as a provider of high quality VET at risk. It also places future potential learners at risk of not being assured quality VET. This is contrary to the objects of the NVR Act.
The Applicant had the opportunity in the hearing before the Tribunal to present evidence to enable the Tribunal to review the auditors’ Evidence Analyses and findings of non-compliance. Much of the evidence was directed to attacking the qualifications of the auditors, Mr Stent and Ms Smith, the conduct of the audit and the issues that followed between the lead auditor and the Applicant’s sole director, Mr Sparrow. The Tribunal was directed to a number of pro forma documents which demonstrated the Applicant had a system in place. But the fact that a system was in place does not meant that the system was adhered to or complied with the Standards and that those engaged by the Applicant, such as trainers and assessors, were performing their obligations, or maintaining any or adequate record of the learners’ pathway to their chosen qualification. The Applicant failed to provide evidence which enabled the Tribunal to accept that the whole of a learner’s education including, training and assessment strategies and practices in relation to the units of competency were consistent with the training packages and as a consequence that the learner met the requirements of each unit of competency.
The Applicant did not agree with much of the supplementary Evidence Analysis of Mr Stent. Although Mr Sparrow said that some rectification was implemented to ensure future compliance, much more was required including a review of the Applicant’s trainers and assessors, the performance of their duties and the record management to enable the Tribunal to be satisfied about rectification and future compliance. That has not occurred and the Tribunal does not accept on the evidence that the Applicant will be compliant in the future. It follows that the Applicant has not satisfied the Tribunal that it was compliant with the clauses 1.1, 1.2, 1.3, 1.5, 1.6, 1.8 and 3.1 of the Standards and, hence, the cancellation was appropriate.
Further, the Tribunal does not accept that the Applicant will likely be compliant in the future, and that the Objects contained in s 2A of the NVR Act, which underpin the legislative scheme, would be maintained. Accordingly, it is not appropriate to reinstate the Applicant’s registration with conditions.
DECISION
The decision under review is affirmed.

I certify that the preceding four hundred and forty eight (448) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

........................[Sgnd].........................
Associate
Dated: 3 April 2020

Dates of hearing: 17, 18 and 19 October 2018

Advocate for the Applicant: Mr Robert Legat, SB Partners Legal Pty Ltd

Advocate for the Respondent: Mr Tim Lloyd, Australian Skills Quality Authority

Dates of hearing:	17, 18 and 19 October 2018
Advocate for the Applicant:	Mr Robert Legat, SB Partners Legal Pty Ltd
Advocate for the Respondent:	Mr Tim Lloyd, Australian Skills Quality Authority