No Registered Training Organisation Is Fully Compliant!
No Registered Training Organisation Is Fully Compliant!
To discuss this statement, we need to consider the empowering Act, its legislative instruments and the grey area of application of legislation to evidence. The legislation includes (depending on the provider’s registration) the National Vocational Education and Training Regulator Act 2011 (Cth), the Education Services for Overseas Students Act 2000 (Cth), as well as associated legislative instruments (e.g., Standards for RTOs 2015, National Code 2018 etc…).
The Facts
Any auditor with years of training and assessment experience in the vocational education and training (VET) sector would (if that were their objective) be able to find any Registered Training Organisation (RTO) to some degree non-compliant. Moreover, any auditor with little experience in auditing RTOs will also be able to identify non-compliance.
Unfortunately, legislation and its instruments are complex and therefore when applied to the evidence may have one or more interpretations (depending on the reader). And so when the Australian Skills Quality Authority (ASQA) audits an RTO, the auditor endeavours to objectively assess the evidence. They will analyse and interpret the data and apply the principles (to the best of their ability) contained within the legislation. The auditor then completes their report which articulates the findings and subsequent recommendations.
The regulator will make a decision based on the auditor’s analysis and recommendations. The decision may (in the worst situation) be for the imposition of severe sanctions against the RTO. Herein lies the ‘quagmire wrapped within an enigma’ for the affected RTO. The burning question for the RTO faced with this dilemma is, should they fight or take flight? It is unfortunate that many RTOs, even ones with proven track records of quality and compliance give up their registration when faced with an adverse audit finding. Before relinquishing registration the RTO should (depending on the severity of the findings) seek professional advice, and with this advice then act swiftly.
Options that may be available to RTO
Where there are findings of non-compliance the following options may be available for review of an ASQA audit decision:
- internal review—this may not be available in all circumstances
- merits review—conducted by the Administrative Appeals Tribunal (AAT)
- judicial review—heard in the Federal Court.
Thus, depending on the circumstances, it may not be in the RTO’s best interest to simply renounce its registration. For example, the AAT may identify that the regulators decision was incorrect. The AAT may then step into the shoes of the regulator and remake the administrative decision based on the merits of the individual case.
Taking Immediate Action
If affected by an adverse regulator decision, the RTO should take immediate action, which may include the following:
- immediately begin the rectification process
- engage professional consultant
- engage a lawyer with experience in the education sector
- seek internal review—this may not be available in all circumstances
- submit an application to the AAT for a review of the decision and
- make application to the AAT to stay the decision.
Summary
The RTO should have a robust quality and compliance management system which includes a process for internal audits. Certainly, they should be completing mini-audits every couple of months. The RTO should have a risk mitigation strategy which includes a streamlined, appropriate and immediate response process for attending to any adverse regulator findings.
Importantly, if the RTO has submitted an application for a stay of ASQA’s decision, they should know that a stay is not always granted. The AAT will certainly consider the application and a range of matters (the RTO must discuss this with their lawyer) to decide whether a stay is appropriate.
Finally, the RTO should not assume that the application of legislation by the regulator to a particular event is always accurate. The RTO must (at all times) be prepared for regulators Performance Assessments (audits), consider the application of quality education as its primary function and question adverse regulator findings. If they know they are in fact non-compliant, then rectify it immediately.
Disclaimer: The information in this article is for general informational purposes only, and is generalist in its approach. The information presented in this article is not legal advice or a legal opinion, and is not intended to be tailored to the specific circumstances of any particular case and should not be relied upon as such. Any organisation or person should seek professional legal advice before acting on any of the information in this article.
By: Raymond M Earl
DipQA, DipVET, DipTDD, LL.B (Hons), GDipLP, MEI, M.Ed
Principal, Markus Earl Legal
