Federal Court of Australia

Galpin v Chief Executive Officer of the Australian Skills Quality Authority [2023] FCA 223

ORDERS

THE COURT ORDERS THAT:

1.    The decision of the Administrative Appeals Tribunal dated 25 February 2021 in matter 2019/0521 is set aside.

2.    The matter is remitted to the Administrative Appeals Tribunal for reconsideration according to law.

3.    The respondent pay the applicant’s costs of the application.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1    The applicant conducted a business in her own right as a registered training organisation (or, RTO) under the business name “Australian Online Racing Accreditation”. The nature of the business was to deliver vocational education and training packages by distance learning, leading to the conferral of certificates or a diploma in the horse racing industry. The lawful conduct of the applicant’s business required that she be registered as a training organisation under the National Vocational Education and Training Regulation Act 2011 (Cth) (NVR Act).

2    The applicant appeals a decision of the Administrative Appeals Tribunal made 25 February 2021. By its decision, the Tribunal affirmed a decision of the Australian Skills Quality Authority (ASQA) to cancel the applicant’s registration under the NVR Act. The appeal is brought in the Court’s original jurisdiction pursuant to s 44 of the Administrative Appeals Tribunal Act 1977 (Cth) (AAT Act) and is an appeal on a question of law. By her amended notice of appeal, the applicant raises eight questions of law which I will identify later in these reasons.

3    For the following reasons I have determined that the appeal should be allowed.

Overview of the legislation

4    The broad plan of the NVR Act is to regulate vocational education and training, which is referred to in the NVR Act and other instruments by the acronym VET. The use of acronyms in this area is prevalent, and I will try and keep the use of other acronyms to a minimum. This area also has its own lexicon where ordinary terms having apparent meaning must be scrutinised to ascertain whether there is any special or defined meaning. It must be said that the mode of regulation, the number of bodies involved, the number of documents having regulatory significance, and the language employed in those documents is somewhat complex.

5    The NVR Act establishes a scheme of registration and regulation of training organisations that are subject to its provisions. The regulator is referred to in the NVR Act as the National VET Regulator. At the time of the primary decision under review by the Tribunal, ASQA was the name under which the National VET Regulator operated. In relation to the different manifestations of ASQA as a result of legislative amendments and transitional provisions, see King Eeducational Service Pty Ltd v Chief Executive Officer of the Australian Skills Quality Authority (No 3) [2021] FCA 692 at [11]-[12].

6    The functions of the National VET Regulator are specified under s 157 of the NVR Act, and include –

157    Functions of the National VET Regulator

(1)    The National VET Regulator has the following functions:

(a)    to register an organisation as an NVR registered training organisation;

(b)    to accredit courses that may be offered and/or provided by registered training organisations;

(c)    to carry out compliance audits of NVR registered training organisations;

(d)    to promote, and encourage the continuous improvement of, a registered training organisation’s capacity to provide a VET course or part of a VET course;

…

(r)    to do anything incidental to, or conducive to, the performance of any of the above functions.

7    The function in s 157(1)(r) is complemented by the power in s 157(7) –

(7)    The National VET Regulator has the power to do all things that are necessary or convenient to be done for or in connection with the performance of the Regulator’s functions.

8    It is difficult to explain the operation of the NVR Act without referring to its surrounding policy and administrative framework. At the hearing I received the following documents, ultimately without objection by counsel for the applicant, for the purpose of understanding the operation of the NVR Act –

(a)    Standards for Training Packages, endorsed by the former Standing Council for Tertiary Education Skills and Employment on 16 November 2012;

(b)    Training Package Products Policy endorsed by the National Skills Standard Council on 5 September 2012;

(c)    Training Package Development and Endorsement Process Policy approved by the Australian Industry and Skills Committee in November 2016;

(d)    extracts from the RGR08 Racing Training Package dated 17 December 2013;

(e)    extracts from the RGR Racing and Breeding Training Package dated 5 July 2018; and

(f)    a webpage of ASQA retrieved from The Wayback Machine titled Transition items on your scope of registration, and bearing a code indicating its date as 29 August 2018.

9    The express objects of the NVR Act are set out in s 2A 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.

10    Section 3 of the NVR Act sets out the definitions used in the Act. The term VET course is defined as follows –

VET course means:

(a)    the units of competency of a training package that is endorsed by the Ministerial Council; or

(b)    the units of competency or modules of a VET accredited course; or

(c)    the units of competency or modules of a course accredited by a VET Regulator of a non-referring State

11    The definition in (a) reflects the fact that the regulation of vocational education and training is the product of co-operative federalism involving a Ministerial Council. I was informed by counsel for the respondent that the courses in issue in this proceeding were the units of competency of a training package that were endorsed by the Ministerial Council and which are referred to in (a) of the definition of VET course. The NVR Act takes the fact of endorsement by the Ministerial Council of a unit of competency in a training package as a foundation for its applicability to those VET courses. Other courses falling within the definition of VET course include those that are a VET accredited course, which is also a defined term, and is a course accredited by the National VET Regulator or its delegate.

12    The Standards for Training Packages that was endorsed by the National Skills Standard Council on 5 September 2012, to which I referred above, states that the National Skills Standards Council was dissolved and that its ongoing functions were to be delegated to the Australian Industry and Skills Committee. The document is a policy document that sets out standards to be met by training package developers in order that the training package be considered for endorsement, but it is not a legislative instrument. It is one of three documents said to form part of the organising framework of standards, the others being the Training Package Products Policy and the Training Packages Development and Endorsement Process Policy to which I referred in [7(b) and (c)] above. Under the standards specified in the Standards for Training Packages, the design and development of training packages for endorsement must comply with the other policies referred to in the document, and must comply with standards applying to units of competency and assessment requirements. The document provides for templates for units of competency and assessment requirements that set out information such as a unit code, a unit title, and descriptions of the unit, and the assessment methods and criteria. Some of the requirements for information in the templates are also requirements of the Training Package Products Policy.

13    The Training Packages Development and Endorsement Process Policy describes a process of development of training packages involving consultation with industries, and which culminates in endorsement by the COAG Industry and Skills Council, which was the relevant Ministerial Council. Upon approval by the Ministerial Council, approved training packages are then able to be delivered by an NVR registered training organisation where the approved training course is within the organisation’s scope of registration. This policy also refers to a process of review and development work to be undertaken over a four year period, stating that every training package component in the national VET system is reviewed on average once every four years.

14    The Training Package Products Policy provides for information relating to the coding and titling of training packages. Where a minor change is made to an approved training package, such as the correction of typographical errors, then the code should not be changed. However, where the change to the package requires endorsement, then the code and the title must be changed, and the equivalence of qualifications and units of competency must be mapped. I will refer to equivalence again below.

15    The extracts from the RGR08 Racing Training Package and the RGR Racing and Breeding Training Package set out the endorsed qualifications, with the corresponding codes and summaries of the units of competency. In relation to the several units of competency identified in these extracts, it is provided that elements of the units describe the essential outcomes of a unit of competency and performance that must be demonstrated to achieve the element. In respect of individual units, there are guides for the evidence required to demonstrate competency. The qualifications which the applicant was approved to deliver were included in the RGR08 Racing Training Package document. Whether the applicant was approved to deliver the courses identified in the RGR Racing and Breeding Training Package document is a question that the applicant put in issue. The respondent’s case was that the relevant qualifications and units of competency in this latter document were equivalent, that they superseded those in the earlier document, and that they became part of the applicant’s scope of registration.

16    The ASQA webpage, Transition items on your scope of registration, refers to the three policy documents that I identified at [8(a)-(c)] above and to a requirement that registered training organisations manage their scope of registration and transition to revised training products. The webpage refers also to a legislative instrument, Standards for Registered Training Organisations (RTOs) 2015 (Cth), clause 1.26 of which addresses such issues. I will refer to this legislative instrument as the Standards, noting that it should not be confused with the other standards of a policy nature to which I referred earlier. The ASQA webpage states that the relevant Skills Service Organisation determines equivalence in keeping with the Standards for Training Packages and its supporting policy documents. In relation to changes to training packages, the webpage stated the following –

•    ASQA automatically updates equivalent (E) changes to training package products on an RTO’s scope of registration, shortly after the equivalent product is listed on the national register

•    Not equivalent (N) changes to training package products require the RTO to apply to change their scope of registration and pay an application fee if they wish to deliver the endorsed, non-equivalent product.

17    The ASQA webpage then addressed both types of change in more detail. In relation to a new or revised training package that was determined as being equivalent to a current training package, the webpage stated –

If you have one of these products on your scope of registration, ASQA will:

•    update your scope of registration with the new, equivalent training product

•    apply any sanctions or conditions that apply to the superseded product on your scope to the new, equivalent product

•    apply the same 'scope extent' listed on the national register ('deliver and assess') or ('deliver only') to the new, equivalent product, and

•    inform you by email that your scope has been updated, including the details of the new, equivalent product.

If you do not want the new equivalent product added to your scope, you can opt out at any time after the update has been made, provided there are no current enrolments. …

18    Under s 116 of the NVR Act, it is an offence to provide, or offer to provide, a VET course if the person is not an NVR registered training organisation. Section 117 of the NVR Act contains corresponding prohibitions giving rise to liability to civil penalties.

19    Section 17 of the NVR Act empowers the National VET Regulator to grant an application by a person for registration as an NVR registered training organisation. The period of registration must not be more than seven years: s 17(5). Upon granting registration, the National VET Regulator must notify the applicant in writing of the applicant’s scope of registration: s 18. The term scope of registration is defined in s 3 as follows –

scope of registration, in relation to an NVR registered training organisation, means the things that an organisation is registered to do. It will allow an NVR registered training organisation to:

(a)    both:

(i)    provide training and assessments resulting in the issue of VET qualifications or VET statements of attainment by the organisation; and

(ii)    provide assessments resulting in the issue of VET qualifications or VET statements of attainment by the organisation; or

(b)    provide assessments resulting in the issue of VET qualifications or VET statements of attainment by the organisation.

20    The term VET qualification is defined –

VET qualification means a testamur, relating to a VET course, given to a person confirming that the person has achieved learning outcomes and competencies that satisfy the requirements of a qualification.

21    In turn, the term VET statement of attainment is defined –

VET statement of attainment, in relation to units of competency or modules of a VET course, means a statement given to a person confirming that the person has satisfied the requirements of units of competency or modules specified in the statement.

22    There are prohibitions on an NVR registered training organisation providing all or part of a VET course that is not within the organisation’s scope of registration: s 93 and s 94. An NVR registered training organisation may apply to the National VET Regulator to change the scope of its registration, which the regulator may grant: s 32 and s 33.

23    An NVR registered training organisation is required to comply with the statutory conditions of registration that are found in s 21 to s 27 of the Act. One of those conditions is that under s 22(1) of the NVR Act, a registered training organisation must comply with standards made under s 185(1) and s 186(1) of the Act, and these are the legislative Standards to which I referred at [16] above.

24    Section 191A(1) of the NVR Act provides that the legislative Standards may apply, adopt or incorporate “any matter contained in another instrument or other writing as in force or existing from time to time”. In turn, Part 1 of the Standards provides –

These Standards should be read in conjunction with the:

•    Standards for Training Packages

•    Standards for VET Accredited Courses

•    Standards for VET Regulators

25    The Standards for Training Packages referred to in the first bullet point immediately above is the policy document to which I referred at [12] above which itself refers to other documents.

26    The purpose of the Standards is set out in Part 1 in the following terms –

Purpose

The purpose of these Standards is to:

1.    set out the requirements that an organisation must meet in order to be an RTO;

2.    ensure that training products delivered by RTOs meet the requirements of training packages or VET accredited courses, and have integrity for employment and further study; and

3.    ensure RTOs operate ethically with due consideration of learners’ and enterprises’ needs.

27    The structure of the Standards is described in Part 1 as follows –

Structure

These Standards consist of eight Standards. Under each Standard is a set of Clauses of the Standard.

To comply with a Standard, the RTO must meet each of the Clauses. A person applying to register as a new RTO must demonstrate the capacity to meet these Standards for all of the person’s intended scope of registration.

For each Standard a context statement is also included. The context does not form part of the Standard itself, and has been included to provide background information to help readers understand the Standard.

…

28    Relevant to this proceeding are clauses 1.1, 1.3, 1.8, 1.13. 1.16, 3.1, 4.1, 5.1, and 5.2 of the Standards with which the Tribunal held the applicant failed to comply, and with which the Tribunal held the applicant remained non-compliant. Extracts of the relevant clauses are set out in the attached schedule. Clause 1.26 the Standards is also relevant, because it assumes that units of competency within training products may be superseded and replaced by other units, and that training products may lose their currency and be deleted from the National Register, which is defined in the NVR Act as the register maintained by the Department, or another person prescribed by the regulations, and referred to in s 216.

29    Section 22A of the NVR Act provides that –

An NVR registered training organisation must demonstrate a commitment, and the capability, to deliver quality vocational education and training.

30    Section 22A commenced operation on 1 July 2020, which was after ASQA’s decision to cancel the applicant’s registration, but before the Tribunal’s decision on review to affirm that decision. The Tribunal referred to s 22A in its reasons. The Tribunal was required to arrive at the correct or preferable decision at the time the Tribunal made its decision: Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286, applying Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.

31    Section 39 of the NVR Act confers power on the National VET Regulator to cancel a registered training organisation’s registration “in any circumstances that the Regulator considers it appropriate to do so”. Under s 39(3) of the NVR Act, an organisation whose registration is cancelled may not apply for registration for two years, or such shorter period as the regulator considers appropriate, after the day the cancellation takes effect.

32    Under s 199 of the NVR Act, a decision by the National VET Regulator under s 39 to cancel registration is a reviewable decision which is subject to review by the Tribunal upon application made under s 203(2).

Further background

33    The applicant first applied for registration as a registered training organisation under the NVR Act in 2015. Her initial application for registration was rejected by ASQA because she was found to be non-compliant with a number of clauses in the Standards. The applicant then applied to the Tribunal for review of ASQA’s decision refusing her application for registration. Following that application for review, ASQA became satisfied that the applicant had rectified what it had considered to be non-compliance, and on 30 March 2016 the applicant was granted registration by ASQA for a period of four years.

34    In August 2018, ASQA conducted a “post-initial” audit of the applicant’s business to assess compliance with the NVR Act and the Standards. As a result of the audit ASQA determined to cancel the applicant’s registration, and did so by notice given on 15 January 2019, which was effective from 19 February 2019.

35    On 31 January 2019, the applicant applied to the Tribunal for review of the decision to cancel her registration under the NVR Act. The applicant was self-represented before the Tribunal. The hearing took place by video over three days between 26 and 28 October 2020. The applicant submitted documentary material and relied on affidavit evidence of herself and Mr Anthony Feagan, who is a VET sector consultant and auditor. ASQA relied on evidence of its in-house auditor, Mr Penna, together with documentary evidence including that contained within the set of documents lodged with the Tribunal under s 37 of the AAT Act. Each of the applicant, Mr Feagan, and Mr Penna was cross-examined at the hearing before the Tribunal.

Summary of the Tribunal’s reasons

36    On 25 February 2021, the Tribunal determined to affirm the decision of ASQA to cancel the applicant’s registration. In its statement of reasons (R), the Tribunal found that the applicant failed to comply with a number of clauses in the Standards, and remained non-compliant. The Tribunal’s reasons are publicly available: Re: Maxine Elizabeth Galpin, t/as Australian Online Racing Accreditation or AORA and Australian Skills Quality Authority [2021] AATA 309.

37    At R[31], the Tribunal identified the scope of the applicant’s registration as at the date of the decision of ASQA that was under review as follows –

(a)    RGR20108 Certificate II in Racing (Stablehand);

(b)    RGR30208 Certificate III in Racing (Advanced Stablehand);

(c)    RGR40108 Certificate IV in Racing (Racehorse Trainer);

(d)    RGR50108 Diploma of Racing (Racehorse Trainer);

(e)    RGR40118 Certificate IV in Racing (Racehorse Trainer); and

(f)    RGR50118 Diploma of Racing (Racehorse Trainer).

38    The qualifications referred to in (a) to (d) above were identified in the RGR08 Racing Training Package to which I referred to at [8] above. At R[32], the Tribunal stated that the four courses identified in (a) to (d) above were superseded in 2018 by the following courses –

(a)    RGR20218 Certificate II in Racing Industry;

(b)    RGR30218 Certificate III in Racing (Stablehand);

(c)    RGR40118 Certificate IV in Racing (Racehorse Trainer); and

(d)    RGR50118 Diploma of Racing (Racecourse Trainer).

39    In the mapping information in the RGR Racing and Breeding Training Package to which I referred at [8] above, the two qualifications RGR40118 Certificate IV in Racing (Racehorse Trainer), and RGR50118 Diploma of Racing (Racecourse Trainer), were identified as being equivalent to, respectively, RGR40108 Certificate IV in Racing (Racehorse Trainer), and RGR50108 Diploma of Racing (Racehorse Trainer).

40    By reference to clause 1.26 of the Standards, the Tribunal stated at R[33] that there was a “teach out” period for the four superseded courses that expired on 4 July 2019, with the consequence that the courses were no longer able to be delivered by any registered training organisation and that they were not within the scope of the applicant’s registration. The Tribunal stated however that on 28 June 2019 the “teach-out” periods for courses numbered RGR30208 and RGR40108 were extended by ASQA and they were able to be delivered until 31 December 2019.

41    In the result, by the time of the review by the Tribunal the only qualifications that, in the Tribunal’s view, remained within the applicant’s scope of registration were the two qualifications referred to at [37(e) and (f)] above. The Tribunal stated at R[34] that it was informed that these two qualifications were automatically added to the applicant’s scope of registration when the courses referred to in [37(c) and (d)] were superseded, and that it was those two courses that the applicant stated she intended to deliver if her registration was reinstated. The Tribunal referred to the new racehorse trainer courses as the New Courses, and I will do likewise.

42    The Tribunal stated that before the audit by ASQA in August 2018, the applicant had issued qualifications to only two students, to whom the Tribunal referred as Student BF and Student JV.

43    The Tribunal did not accept all of the matters put on behalf of ASQA in support of its submission that its decision should be affirmed. The findings and conclusions of the Tribunal that were adverse to the applicant and which were taken into account in affirming ASQA’s decision to cancel the applicant’s registration were as follows –

Non-compliance with assessment procedures – R[71]-[77]

(1)    Before the Tribunal, ASQA alleged that the applicant was non-compliant with clauses 1.1, 1.8, and 3.1 of the Standards in relation to her assessment systems. The Tribunal found that in relation to the assessment of Student JV, the applicant had failed to comply with her own assessment procedures. Those procedures required the applicant to obtain a copy of Student JV’s passport to verify his identity, and to watch video footage of him handling horses to demonstrate that he possessed the practical skills required under the applicant’s training and assessment strategies. Instead, the applicant used photographs of Student JV working with horses, and before the Tribunal relied on evidence that Student JV held racing licences dating back seven years that would have given the applicant confidence that the student had certain knowledge and had acquired certain skills leading to her bypassing some of her assessment policies and procedures. The Tribunal considered that when assessing whether Student JV possessed the required practical skills, the applicant placed undue reliance upon the word of others and upon the fact that the student had held a State-based licence for seven years. The Tribunal held that by doing so, the applicant bypassed “a substantive assessment process that was required under the VET scheme”, which gave rise to a risk that the applicant had awarded a VET qualification to a person who may or may not possess the required practical skills. The Tribunal held that this factor weighed against restoring the applicant’s registration.

Failure to complete training and assessment strategies for the New Courses – R[78]-[93]

(2)    The Tribunal then considered whether the applicant had completed training and assessment strategies for the New Courses, which the Tribunal regarded as having been added automatically on 5 July 2018 to the scope of the applicant’s registration, with the “teach out” period of the superseded courses having expired by the time of the Tribunal hearing. The Tribunal stated that when the applicant was asked at the hearing whether she had completed the training materials and assessment tools for the New Courses, she said she had not, and when the applicant was asked whether she had started them, she provided an explanation that did not instil confidence in the Tribunal that any significant progress had been made. The Tribunal did not accept the applicant’s evidence that the training and assessment strategies for the new courses would be sent off to her auditor “tonight”, because if that were correct the applicant would have produced them before the hearing to demonstrate her readiness to deliver the new courses. The Tribunal did not accept a claim by the applicant that she was very close to being set up and ready to go, and found that by the end of the substantive hearing the applicant had still not prepared and finalised her training and assessment strategies for the New Courses with the consequence that she was not able to deliver those courses if she was registered to do so. The Tribunal stated that this was a matter of significant concern, and that the applicant’s failure to finalise these strategies reflected a lack of understanding about the obligations of a registered training organisation when delivering nationally recognised VET qualifications. The Tribunal stated that the applicant’s inability to deliver the New Courses because she had not completed the training and assessment strategies weighed heavily against restoring the applicant’s registration.

Assessment of theoretical components – R[94]-[106]

(3)    The Tribunal found that there were significant weaknesses in the practices that were adopted by the applicant in assessing theoretical components of the courses. The Tribunal made this finding by reference to an answer given by Student JV in an assessment task that was clearly incorrect, and where the applicant had not developed any model answers, which reflected the fact that the applicant’s assessment systems were not sufficiently structured and were incomplete. The Tribunal held that the applicant’s training and assessment practices for the theoretical components of the courses were non-compliant with clause 1.8 of the Standards, and that this weighed against restoration of the applicant’s registration.

Assessment of practical skills – R[107]-[124]

(4)    The Tribunal found that the applicant’s assessment procedures for practical skills were insufficient. In particular, the Tribunal found that by reference to the assessment of Student JV, the applicant’s assessment practices for recognition of prior learning were deficient, and that there was insufficient documentation of the applicant’s assessment of Student JV. While the applicant conceded that improvements needed to be made, the Tribunal found that the applicant’s actions to rectify the issue were insufficient. The Tribunal held that these issues weighed against restoring the applicant’s registration.

Interim conclusions as to non-compliance with the Standards – R[130]-[131]

(5)    Having regard to its adverse findings summarised above, the Tribunal concluded that the applicant had been non-compliant with clauses 1.1, 1.8, and 3.1 of the Standards, and that the applicant was not in a position to give the Tribunal any confidence that she could comply with those provisions at the time of the decision, or in the near future. The Tribunal considered that it was speculative whether the applicant might become compliant if she were to bring her VET consultant Mr Feagan on board under a retainer to assist her to develop better training and assessment strategies and practices.

The applicant’s qualifications as a VET trainer and assessor – R[132]-[137]

(6)    The Tribunal accepted that the applicant’s intention was to remain as a small operation, and that one trainer and assessor would be sufficient to carry out the delivery of distance education courses to the applicant’s students. However, the Tribunal found that, having heard evidence from the applicant and from Mr Feagan at the hearing about the currency of the applicant’s skills and knowledge in relation to the delivery of vocational education and training, the applicant was non-compliant with clauses 1.13 and 1.16 of the Standards. The Tribunal found that the applicant did not have access to sufficient (or indeed, any) trainers and assessors to deliver the training and assessment for all courses and units within her scope of registration, and that the applicant was not likely to have access to such trainers and assessors at any time soon. The Tribunal found that the applicant’s professional development and level of knowledge and skills to deliver vocational education and training were deficient, and that this weighed against restoring the applicant’s registration.

Enrolment practices – R[164]-[175]

(7)    The Tribunal found that the applicant did not have a system to ensure that students who held visas were given appropriate advice about their eligibility to enrol. The Tribunal referred to the circumstances of Student JV who was born in Columbia, and where there were questions whether he was an Australian citizen or a visa holder. If Student JV was a visa holder, then questions would arise about the application to the applicant’s business of the requirements under the Education Services for Overseas Students Act 2000 (Cth). As it happened, ASQA did not dispute that Student JV was entitled to enrol. However, the point was that there was no system or practice in place that would reliably ensure that that those issues would be picked up at the time of enrolment. The Tribunal considered that it was critically important to ascertain with certainty the status of a prospective student prior to enrolment. The Tribunal stated that the applicant’s approach was to make assumptions about the visa status of Student JV, instead of verifying his precise status by reference to a passport and any visas that he held. The Tribunal considered that it was incumbent upon the applicant to have adopted a more rigorous process than it did to establish such matters and that for this reason the applicant was non-compliant with clause 5.1 of the Standards. The Tribunal stated that the applicant did not refer to any specific written procedure which would give the Tribunal confidence that this situation would not occur in the future.

Student information and marketing materials – R[176]-[186]

(8)    The Tribunal found that a student induction and orientation document which the applicant had adapted from one used by another training organisation contained several errors and misrepresentations. The Tribunal was satisfied that the applicant was non-compliant with clauses 4.1, 5.1 and 5.2 of the Standards, and based upon the material that was before the Tribunal, it was not confident that the non-compliance had been adequately rectified. The Tribunal considered that these matters weighed against restoration of the applicant’s registration.

Other considerations – R[187]-[201]

(9)    The Tribunal referred to a number of other considerations that were the subject of submissions by ASQA before the Tribunal, and accepted that they also weighed against restoring the applicant’s registration. Those considerations included the opportunities the applicant had to rectify the failings identified by ASQA and to demonstrate a capacity to deliver vocational education and training that met the minimum standards expected of a registered provider, that there remained serious ongoing concerns in relation to the applicant’s conduct, and that the applicant had not explained how the non-compliances occurred or what steps she had taken to ensure future compliance. The Tribunal accepted a submission by ASQA that the prospects of the applicant implementing effective remedial action were poor. Further, while rejecting ASQA’s submission that the applicant was not a fit and proper person, the Tribunal stated that although the applicant had done her best to try to establish a training organisation within the racing industry to deliver VET training of a high standard, she had either underestimated or misunderstood the task at hand. The Tribunal considered that the applicant had misfired in several aspects in the way she had run her operations, and that she did not take all necessary steps to establish her training organisation in such a way as to ensure she was operating in due compliance with all of the Standards.

Sanctions – R[202]-[213]

(10)    The Tribunal concluded that the applicant was not ready to operate as a compliant registered training organisation and would need more time to become compliant with several of the Standards and the conditions of registration under s 21 and s 22 of the NVR Act. The Tribunal accepted a submission by ASQA that there had been a considerable and unacceptable delay by the applicant in addressing the non-compliances that had been identified in the 2018 audit, a period of more than two years previously. The Tribunal had regard to the fact that the applicant had been aware since at least July 2018 that there was a new training package which meant that she would need to develop new training and assessment materials. The applicant’s failure to come to the Tribunal with an overhauled system with material that complied with the new training package and to lead material that corrected the issues that were identified by ASQA’s auditor was material to the Tribunal’s consideration. The Tribunal did not consider that it was appropriate that the applicant be given further time to bring her operations up to a level that was compliant with all of the Standards. The Tribunal stated that it was open to the applicant to attend to the shortfalls that had been identified should she wish to, and to re-apply for registration as a registered training organisation. The Tribunal had earlier noted that under s 39 of the NVR Act, it was open to the applicant to re-apply for registration two years after the cancellation took effect, which would be in February 2021. The Tribunal considered that there was an unacceptable risk to employers, horse owners and future graduates if the applicant issued students with qualifications without properly assessing them. The Tribunal remained concerned that this may have occurred if the applicant was permitted to recommence operations. The Tribunal concluded that the applicant remained non-compliant with several clauses of the Standards and that it was appropriate in all the circumstances that the applicant’s registration be cancelled with immediate effect and that no lesser sanction should be imposed. The Tribunal stated that there was much work to be done by the applicant, and that she needed to undertake a comprehensive overhaul of her training and assessment strategies, her training and assessment materials with respect to the New Courses, and her recognition of prior learning processes.

The questions of law and grounds of appeal

44    By her amended notice of appeal the applicant raised eight questions of law, as follows –

Questions of law

1.    Whether that the Applicant had not implemented her own assessment policy was relevant to whether there had been non-compliance with cl 1.8 of the Standards for Registered Training Organisations (RTOs) 2015 (Standards).

2.    Whether, on the proper construction of cl 1.8 of the Standards which requires that the “RTO implements an assessment system”, cl 1.8 is not met when the Applicant conducts an assessment other than in accordance with her own policy.

3.    Whether, on the proper construction of cl 1.8 of the Standards, the Tribunal was required to test the assessment process which the Applicant had conducted against the content of that Standard.

4.    Whether the Tribunal was entitled to take into account the purported changes to the Applicant’s scope of registration that were not made pursuant to section 33 of the [NVR Act] (the Imposed Changes) in deciding to cancel the Applicant’s registration.

5.    Whether the Tribunal reached the state of mind provided by subsection 39(1) of the [NVR Act] in relation to the Imposed Changes.

6.    Whether in deciding to cancel the Applicant’s registration the Tribunal impermissibly imposed an onus of proof on the Applicant.

7.    Whether the failure of the Applicant to enquire into whether a prospective learner held a visa that permitted him to study in Australia was a circumstance relevant to cl 5.1 of the Standards, which requires the RTO to provide “advice appropriate to meeting the learner’s needs, taking into account the individual’s existing skills and competencies”.

8.    Whether, on the proper construction of cl 5.1 of the Standards, the advice which the Applicant was required to provide included enquiring as to a prospective learner’s visa status.

45    The applicant’s grounds of appeal are largely complementary to the questions of law and I will set them out when addressing the submissions advanced on behalf of the applicant.

Consideration of the grounds of appeal

46    Counsel for the applicant conveniently addressed the grounds of appeal in four groups, and I will do likewise.

Grounds 1 to 3: the relevance and significance of the applicant’s own policy in finding that clause 1.8 of the Standards was not met.

47    Grounds 1 to 3 are in the following terms –

1.    The Tribunal took into account an irrelevant consideration in deciding whether there had been non-compliance with cl 1.8 of the Standards, namely the Applicant’s non-implementation of her own assessment policy (Tribunal’s Reasons 25 February 2021 (Reasons) at [71]-[77]).

2.    Alternatively to Ground 1, the Tribunal misconstrued cl 1.8 of the Standards in finding that the Applicant’s failure to implement her own assessment policy constituted a failure to comply with the Standard that the RTO implements an assessment system (Reasons at [71]-[77]).

3.    The Tribunal did not test or compare the assessment process which the Applicant had implemented against the content of cl 1.8 of the Standards, without which comparison it could not determine whether the Standard had been complied with.

Grounds 1 to 3: the applicant’s submissions

48    Grounds 1 to 3 relate to the Tribunal’s findings that I summarised at [43(1)] above concerning the applicant’s failure to use video footage to assess Student JV. The Tribunal’s findings on this issue included those at R[77] which I set out below –

77.    The Tribunal has weighed up the evidence from both parties and is satisfied that when assessing Student JV, the Applicant has failed to comply with its own assessment procedures. The Applicant’s own procedures required her to obtain a copy of Student JV’s passport to verify his identity, while watching video footage of him handling horses to demonstrate that he possessed the practical skills required under the Applicant’s TASs. This did not take place. The Tribunal considers that when assessing whether Student JV possessed the required practical skills, the Applicant placed undue reliance upon the word of others and upon the fact that he had held a State-based licence for seven years. By doing so, the Applicant bypassed a substantive assessment process as required under the VET scheme. This gave rise to a risk that the Applicant had awarded a VET qualification to a person who may or may not possess the required practical skills. The Tribunal does not accept that this non-compliance was justified based on the matters raised by Mr Feagan. Accordingly, this factor weighed against the Tribunal making a decision that would, in effect, restore the Applicant’s registration as an RTO.

49    Counsel for the applicant submitted that the words of clause 1.8 of the Standards do not contain any requirement for an assessment system to include examination of video footage of a student. Nor, counsel submitted, did anything in the tables under clause 1.8. It was submitted that on the contrary, the principles and rules make clear that an assessment system is not to be rigid, or rigidly applied. Counsel referred to the principle of assessment that assessment is to be “flexible to the individual learner” by, amongst other things, “drawing from a range of assessment methods”. Counsel relied on the rules of evidence concerning validity, which require only that the “assessor is assured that the learner has the skills, knowledge and attributes as described in the module or unit of competency and associated assessment requirements”. It was submitted that these matters suggested that a rigid and prescriptive approach is contrary to the proper application of clause 1.8.

50    Counsel for the applicant submitted that whether there has been compliance with clause 1.8 of the Standards must begin with the terms of that provision and identification of the elements of the impugned assessment system, rather than by reference to a particular document of the applicant. It was submitted that the existence of a documented provision for assessment by use of video evidence cannot be definitive as to compliance with clause 1.8.

51    Counsel for the applicant submitted that neither the Principles of Assessment nor the Rules of Evidence was referred to in the Tribunal’s reasons. It was submitted that instead, there were rolled-up conclusions that the applicant’s failure to obtain video footage of Student JV “bypassed a substantive assessment process as required under the VET scheme”. It was submitted that the “substantive assessment process as required under the VET scheme” to which the Tribunal referred was not identified.

52    Counsel for the applicant submitted that clause 1.8 of the Standards does not require the implementation of any particular assessment system calling on video footage, and that it required only an assessment system that complied with clause 1.8(a) and which was conducted in accordance with clause 1.8(b). It was submitted that the applicant’s failure to use video footage was not probative of, and not relevant to, the broader question whether there had been compliance with clause 1.8.

53    Alternatively, counsel for the applicant submitted that it was a misconstruction of clause 1.8 for the Tribunal to reason that, just because the applicant had not applied her policy in assessing Student JV, she had necessarily not implemented “an assessment system” and therefore had not been compliant with clause 1.8. Counsel emphasised that clause 1.8 contemplates flexibility, which was an aspect of the Standard that was evidently overlooked by the Tribunal.

54    Further, counsel for the applicant submitted that the Tribunal’s reasoning concerned Student JV only, and that even if it was assumed that the Tribunal was correct to consider whether the applicant’s policy had been applied in determining compliance with clause 1.8, the Tribunal erred in law by concluding that a single departure from that policy justified the finding that the applicant did not have a sufficient “assessment system”. Relatedly, counsel submitted that the Tribunal’s reasons did not address how, or whether at all, the process which the applicant did apply in respect of Student JV and the other student failed to meet clause 1.8 of the Standards. It was submitted that there was no reference to, much less any examination of, the content of clause 1.8.

55    Counsel for the applicant submitted that the Court should take what the reasons do and do not say as indicative of what was material to the Tribunal’s reasoning process. It was submitted that a fair reading of R[77] of the Tribunal’s reasons demonstrated that the Tribunal did not consider the terms or content of clause 1.8 to have been material to its reasoning, much less set out anything going towards the precise way in which it concluded that the applicant’s assessment process or system was not compliant with clause 1.8. That being so, it was submitted that the Tribunal could not have lawfully concluded that there had been non-compliance with clause 1.8.

Grounds 1 to 3: the respondent’s submissions

56    In relation to the first ground of appeal, counsel for the respondent submitted that it is well-established that an irrelevant consideration is one that the decision-maker is “bound to ignore”, having regard to the scope, subject-matter and purposes of the legislation. Counsel submitted that it could not be said that the applicant’s failure to implement her own assessment policy was an issue of that character, in circumstances where its consequence was that the applicant failed to conduct any direct assessment of the student’s practical skills, and instead relied exclusively on the opinion of others (including state-based licensing assessors) to conclude that Student JV met the requirements of the training package. It was submitted that this form of assessment was plainly relevant to whether the applicant’s training and assessment strategies and practices enabled each student to meet the requirements for each unit of competency in which they were enrolled (as required by clause 1.1), whether the applicant implemented an assessment system that ensured that assessment complied with the assessment requirements of the relevant training package and was conducted in accordance with the Principles of Assessment and Rules of Evidence (which are set out under clause 1.8 of the Standards), and whether the applicant issued Australian Qualifications Framework certification documentation only to students whom she had assessed as meeting the requirements of the qualification as specified in the training package (as required by clause 3.1). It was submitted that at the heart of each of those requirements was an expectation that a registered training organisation will engage in a substantive assessment of whether the student meets each of the relevant requirements set out in the training package for the particular unit of competency being undertaken by the student. It was submitted that the applicant’s failure to conduct such an assessment, particularly when contrary to her own stated policy, was plainly a matter that it was open to the Tribunal to take into account in assessing the applicant’s compliance with those Standards.

57    As to the second and third grounds of appeal, counsel for the respondent submitted that the Tribunal did not misconstrue clause 1.8 of the Standards by requiring the applicant to adhere to her stated policy. It was submitted that the primary focus of the Tribunal’s reasons was on the consequences of the applicant’s failure to collect the evidence that her own policy required her to obtain, and the sufficiency of the practice in which the applicant engaged in lieu of following her policy. It was submitted that it is wrong to suggest that the Tribunal interpreted the Standards as requiring video assessment to be conducted as an end in itself.

58    As to the suggestion that the Tribunal erred by basing its decision on the applicant’s practices in relation to a single student, counsel for the respondent submitted when it was common ground before the Tribunal that the applicant had only ever issued qualifications to two students, and as such, the Tribunal’s assessment was effectively based on 50 percent of the applicant’s entire student cohort. Moreover, when returning to this issue the Tribunal noted there was no evidence the student in question was not “representative of a typical student that the Applicant is likely to enrol in one of her courses.”

59    Counsel for the respondent further submitted that it could not be said that the Tribunal erred by failing to address the requirements of the relevant clauses in terms, or to couch its reasoning in the same language as that adopted by those clauses. It was submitted that reading the reasons of the Tribunal fairly and beneficially, it was clear that the Tribunal’s reference to the “substantive assessment process as required under the VET scheme” (see [43(1)] above) was intended to encompass the fundamental requirement for an assessment by the registered training organisation against each of the requirements for the relevant unit of competency set out in the training package, as reflected in each of the clauses with which the Tribunal was dealing. It was submitted that it was not necessary for the Tribunal to go further and set out in terms each of the particular manifestations of that requirement under each clause.

Grounds 1 to 3: analysis

60    It appears from the Tribunal’s reasons at R[157] that Student JV was enrolled in RGR30208 Certificate III in Racing (Advanced Stablehand). The applicant’s training and assessment strategies for that course, as well as those for her other courses, provided for the provision of video and logbook evidence to demonstrate learner skills over a period of time.

61    As I stated at [48] above, the applicant relied on the Tribunal’s findings in relation to the failure to assess Student JV by reference to video footage in accordance with her own assessment procedures as giving rise to error. Those findings include those at R[77], which I have set out.

62    I am not persuaded to uphold the applicant’s grounds of appeal 1 to 3. The Tribunal’s reasons in relation to the applicant’s assessment of Student JV were part of a path of reasoning that was not confined to a finding that the applicant had not implemented her own assessment processes. It is clear from R[77], when read with other passages of the Tribunal’s reasons, that the Tribunal was concerned with the substance of the applicant’s assessment processes in relation to Student JV which it considered inadequate, and which “gave rise to a risk that the applicant had awarded a VET qualification to a person who may or may not possess the required practical skills.” The necessary context of the Tribunal’s reasoning was that the applicant was delivering the courses remotely and did not herself observe Student JV demonstrating practical skills, but had placed undue reliance upon still photographs and the words of others. The reference to the words of others incorporates the applicant’s reliance on other racing licences held by Student JV that were referred to in the evidence and in the Tribunal’s reasons at R[72]. It was in this context that the Tribunal formed an adverse view of the applicant’s failure, in accordance with her own assessment procedures, to rely upon video evidence relating to the completion of the course by Student JV. Fairly read, the Tribunal was not just concerned that the applicant had not complied with her own assessment procedures, but also concerned that such assessment procedures as she had undertaken were not satisfactory, which is plain from R[123]. These matters, together with inadequate tools for the recognition of prior learning, and inadequate documentation in relation to the assessment of Student JV, contributed to the Tribunal’s conclusion at R[130] that the applicant had been non-compliant with clauses 1.1, 1.8, and 3.1 of the Standards. Those clauses are set out in the schedule to these reasons and are expressed in terms that invite evaluation by the decision-maker.

63    Therefore, it cannot be said that by referring to the absence of video evidence the Tribunal took into account an irrelevant consideration in the sense explained by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 40. Nor did the Tribunal misconstrue clause 1.8 of the Standards by relying on the applicant’s failure to comply with her own assessment processes. That is because, in the Tribunal’s estimation, the failure to assess Student JV in the manner outlined in the applicant’s own assessment procedures contributed to its overall conclusions concerning the applicant’s unsatisfactory training and assessment strategies, practices, and assessment systems, and they were the features that the Tribunal held to give rise to non-compliance with clauses 1.1, 1.8, and 3.1 of the Standards. Nor can it be said that the Tribunal failed to assess the applicant’s systems by reference to the evaluative criteria in clause 1.18 of the Standards.

Ground 4: the irrelevance of the ‘New Courses’

64    Ground 4 is in the following terms –

4.    The Tribunal took into account an irrelevant consideration in finding that the Applicant ‘is not ready to deliver the New Courses’ and therefore was not compliant with cll 1.1 and 1.8 of the Standards, that finding being predicated on the incorrect basis that the New Courses were lawfully part of the Applicant’s scope of registration (Reasons at [34], [78]-[93]).

Particulars

The New Courses were not lawfully part of the Applicant’s scope of registration, because they had never been added pursuant to an application under section 33 of the [NVR Act], nor under any other statutory power.

Ground 4: the applicant’s submissions

65    Counsel for the applicant submitted that the Tribunal impermissibly considered the applicant’s readiness to deliver the New Courses in circumstances where, it was submitted, the New Courses were not within the applicant’s scope of registration. It was submitted that the applicant had never applied to have the New Courses included within her scope of registration, and that ASQA was not authorised to add them unilaterally. In the course of oral argument, senior counsel for the applicant also submitted that unless ASQA had power to replace the superseded courses, then the old courses within the applicant’s scope of registration had not lapsed.

66    Counsel for the applicant submitted that the vocational education regulatory regime contemplated that courses were to be “accredited” under Part 3 of the NVR Act, and that the scope of registration of a registered training organisation would permit it to deliver and assess only specific accredited courses set by the regulator. Counsel referred to the Tribunal’s findings as to the scope of the applicant’s registration and to the six courses that I listed at [37] above, and to the fact that the first four of those courses had been superseded by the four courses which I listed at [38] above. It was submitted that the Tribunal conducted its review on the basis that the applicant would deliver RGR40118 Certificate IV in Racing (Racehorse Trainer) and RGR50118 Diploma of Racing (Racehorse Trainer), being two courses that had been “automatically added” to her scope of registration.

67    Counsel for the applicant submitted that there was no discussion in the Tribunal’s reasons of the differences between the New Courses and the ones which they superseded. It was submitted, however, that there was a ready inference that there must have been some differences, which had been presumably approved under Part 3 of the NVR Act. It was submitted that precisely how the “superseding” took place, and under what statutory provision, were also not addressed.

68    Counsel for the applicant submitted that the Tribunal’s reasons contained no consideration of the content of the New Courses, or what it meant by recording that they had been “automatically added” to the applicant’s scope of registration. Nor, in counsel’s submission, did the Tribunal identify in its reasons any apparent mechanism which would have permitted this to occur. It was submitted that there was no provision in the NVR Act that permitted ASQA to “automatically add” a course to the scope of registration of a registered training organisation. Rather, a scope of registration could be altered only by application made by the registered training organisation: sections 32-34 of the NVR Act. Counsel submitted that there was no evidence that the applicant’s scope of registration was ever altered pursuant to those provisions, and that it followed that the applicant’s scope of registration at law (as opposed to what was assumed by the Tribunal and the parties) could not have included the New Courses.

Ground 4: the respondent’s submissions

69    Counsel for the respondent did not accept that the New Courses were never lawfully part of the applicant’s scope of registration. However, counsel submitted that even if that were so, it would not mean that the applicant’s preparedness to deliver the New Courses was an irrelevant consideration that the Tribunal was “bound to ignore” in an administrative law sense, in circumstances where:

(a)    the applicant gave evidence to the Tribunal that the New Courses were the courses she was intending to deliver if her registration were reinstated; and

(b)    all of the other courses on the applicant’s scope of registration could no longer be taught because they had been superseded by subsequent courses and the transition period allowed for under clause 1.26 of the Standards had expired.

70    Counsel for the respondent pointed to the terms of the applicant’s own training and assessment strategies, and illustratively, to the document that the applicant prepared for RGR20108 Certificate II in Racing (Stablehand), which provided –

71    Counsel for the respondent submitted that there was no reason why the scope of registration of a registered training organisation could be altered only by the granting of an application under s 33 of the NVR Act. It was submitted that the regulatory regime expressly contemplated that training packages would be periodically reviewed and re-issued, and that as part of that review an assessment would be made by the developer of the training package as to whether the units of competency and qualifications contained in the new training package were equivalent or non-equivalent to the units of competency and qualifications they replaced. It was submitted that the evidence before the Tribunal was that the respondent had adopted a practice that, where a qualification within the scope of registration was superseded by a qualification that was deemed under the training package to be an equivalent qualification, the respondent would add a qualification to the scope of registration without the registered training organisation needing to make a formal application. Counsel submitted that whether that was regarded in law an exercise of power under s 33 of the NVR Act (on the assumption that the registered training organisation was treated as having made a standing application for equivalent courses to be added to its scope of registration), or an exercise of power in connection with the performance of the respondent’s function under s 157 of the NVT Act to “promote, and encourage the continuous improvement of, a registered training organisation’s capacity to provide a VET course or part of a VET course” was immaterial. Counsel submitted that the practical reality remained that the unambiguous evidence to the Tribunal was that the applicant intended to offer the New Courses and that no other course on the applicant’s scope of registration remained current and able to be taught.

72    Counsel for the respondent submitted that it was absurd, and flied in the face of reality, to suggest that the Tribunal was precluded from taking into account the applicant’s preparedness to teach the New Courses, when they were the courses she intended to deliver if her registration was restored, and when they were the only courses on the applicant’s scope of registration that she was able to deliver without making a fresh application.

Ground 4: analysis

73    I commence with a minor point. The submissions of counsel for the applicant proceeded on the premise that the courses that had been within the applicant’s scope of registration were accredited under Part 3 of the NVR Act. I did not understand that any of the courses in issue was a VET accredited course. Instead, I understood that the courses comprised units of competency of a training package that had been endorsed by the Ministerial Council, and which fell within paragraph (a) of the definition of VET course. I make no criticism of counsel, because the terms that are employed in the legislation to refer to different concepts are insufficiently distinct, and liable to give rise to confusion. Whether the courses were endorsed by the Ministerial Council, or were VET accredited courses, is not material to what follows.

74    I am not persuaded to uphold Ground 4. The operative reason relates to the Tribunal’s finding at R[34] that the New Courses that ASQA stated had been automatically added to the applicant’s scope of registration were the courses that the applicant proposed to deliver should the decision to cancel her registration be set aside. The Tribunal found that the four original courses within the applicant’s scope of registration were superseded in 2018. Precisely how those courses were superseded is not before the Court.

75    As set out at [24] above, the legislative standards made under s 185 of the NVR Act may pick up “any matter” contained in any other instrument or writing “as in force from time to time”: s 191A(1). The legislative Standards operate on an assumption that training products may be superseded by replacement products. That is evident from clause 1.26 of the Standards, which is set out in the schedule to these reasons. The legislative Standards also provide in their opening provisions that they are to be read in conjunction with the Standards for Training Packages, which is the 2012 policy document to which I referred at [8(a)] above. In turn, the 2012 policy document provides by its Standard 2 and Standard 3 that training package developers are to comply with the Training Package Products Policy and the Training Package Development and Endorsement Process Policy. These documents, forming part of the administration of the regulatory scheme, support an assumption that VET courses are regularly reviewed by those responsible for their development and endorsement. That there should be regular reviews is hardly surprising, and is consistent with the objects in s 2A of the NVR Act which I set out at [9] above. The requirements in the policy documents that qualifications are to be mapped is also consistent with this process of review. The mapping of qualifications is evident in the training package document for the New Courses, which provided that the New Courses with the codes RGR40118 and RGR50118 were the equivalent qualifications to RGR40108 and RGR50108 respectively.

76    The Tribunal’s function was to “do over again” what was done by the original decision-maker, and to do so on the basis of the material before it: Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; 113 CLR 475 at 502 (Kitto J); Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286. At the time the Tribunal made its decision, the evidence on which it acted was that the four original courses had been superseded, the “teach out” periods had expired, and that the applicant proposed to deliver the New Courses. Whether these courses had been lawfully included within the scope of the applicant’s registration at the time of the Tribunal’s decision is in my view beside the point. It was ASQA’s view that they had been added, and presumably if a formal application was necessary under s 32 of the NVR Act to add the courses to the scope of the applicant’s registration, ASQA could consider the application. But the Tribunal found that the New Courses were the only courses that the applicant proposed to deliver. And they were the only courses which the applicant was lawfully capable of delivering on the assumption either that they were already within the applicant’s scope of registration, or that they would be included within her scope of registration if a formal application was necessary. In either event, the Tribunal’s finding at R[92] that the applicant was not ready to deliver the New Courses if her registration was restored was a permissible relevant consideration.

77    On the above analysis, it is not necessary for me to form a view as to whether the New Courses were lawfully within the applicant’s scope of registration at the time of the Tribunal’s decision. To my mind, it might be possible to construe the original scope of registration as encompassing the four listed courses and any replacement courses that were determined through the development and endorsement process to be equivalent courses and nominated as such in the mapping information. However, I venture no opinion about this possibility because the documents surrounding the original registration are not before the Court, and the case was not argued in quite this way. If equivalent replacement courses are to be regarded as being within a registered training organisation’s existing scope of registration, then I venture to suggest that the power of the National VET Regulator under s 157(7) of the NVR Act to do all things that are necessary or convenient to be done for or in connection with its functions would be a sufficient statutory foundation to authorise it to make an amendment to a registered training organisation’s scope of registration in the National Register that must be maintained under s 216 of the NVR Act so as to include the titles and codes given to the replacement courses: see generally, Hird v Chief Executive Officer of Australian Sports Anti-Doping Authority [2015] FCAFC 7; 227 FCR 95 at [210] (Kenny, Besanko and White JJ).

Ground 5: onus of proof and the New Courses

78    Ground 5 is in the following terms –

5.    The Tribunal failed to reach the state of mind in subsection 39(1) of the [NVR Act], and instead impermissibly imposed an onus of proof on the Applicant (Reasons at [34], [78]-[93]).

Particulars

(a)    The Tribunal’s finding as to the Applicant’s non-readiness to deliver the New Courses was a product of it requiring the Applicant to prove the contrary by documentary evidence alone, in the form of training and assessment materials.

(b)    The Tribunal imposed an impermissible onus of proof on the Applicant in the absence of evidence before the Tribunal as to what differences existed, if any, between the New Courts and their predecessors, or making no finding of fact in relation to the same.

Ground 5: the applicant’s submissions

79    Counsel for the applicant submitted that the Tribunal sought to “re-exercise” ASQA’s power in s 39(1) of the NVR Act to cancel the applicant’s registration, and that the NVR Act did not impose any onus or burden of proof on the applicant either generally or in relation to any particular aspect of her merits review application.

80    Counsel for the applicant made two submissions in support of ground five. The first submission was that there was no requirement under the NVR Act to have training and assessment strategies in documentary form. Counsel referred to the definition of training and assessment strategies and practices in the Standards, which refers to “the approach of, and method adopted by, an RTO with respect to training and assessment designed to enable learners to meet the requirements of the training package or accredited course”. It was submitted that, reflective of that definition, throughout the body of the Standards, the “training and assessment strategies and practices” are referred to as intangible concepts rather than discrete documents.

81    The second submission was that, further or alternatively, not having examined the content of the New Courses and their predecessors, the Tribunal made no findings of fact as to the similarities or differences between them. Counsel submitted that this lacuna was visited on the applicant as impermissibly requiring (i.e. imposing an onus on) her to demonstrate that she was ready to teach the New Courses. Counsel submitted that this claimed error was more egregious given that the Tribunal did not make any finding about the applicant’s ability to teach the predecessor courses which the New Courses were said to supersede.

Ground 5: the respondent’s submissions

82    Counsel for the respondent submitted that the applicant’s case in support of ground 5 mischaracterised the reasons of the Tribunal. It was submitted that the applicant herself had accepted that the written training and assessment materials that she used to deliver the courses in question needed to be revised and updated in light of the issue of the training package for the New Courses, and gave evidence that she had commenced, but not completed, that process.

83    Counsel for the respondent submitted that it was not the absence of documentation of itself that caused the Tribunal concern: it was the fact that more than two years after the release of the New Courses, the applicant still had not completed the steps she herself had identified as necessary to commence delivery of those courses and, as a result, could not satisfy the conditions of registration set out in s 21 and s 22 of the NVR Act. It was submitted that this reasoning did not involve the imposition of an onus of proof by the Tribunal. It simply involved an assessment of the non-compliance alleged by ASQA in light of the applicant’s own evidence and the requirements of the regulatory regime.

84    Counsel for the respondent also submitted that it was not necessary for the Tribunal to make findings of fact as to the similarities or differences between the New Courses and the courses that they superseded in order for the Tribunal to find non-compliance on the basis of the applicant’s inability to deliver the New Courses. Counsel submitted that the superseded courses had expired and the applicant herself had conceded that her materials needed to be updated, but that this process was not yet completed. It was submitted that in those circumstances, it was open to the Tribunal to conclude that the applicant was not in a position to deliver the New Courses and was non-compliant with her obligations as a result.

Ground 5: analysis

85    I do not accept that ground 5 has been made out. It appears from the Tribunal’s reasons to have been an accepted fact that the New Courses required some new documentation in the form of at least training and assessment strategies. The Tribunal at R[84] referred to evidence given by the applicant that draft materials for the New Courses could be sent to her VET consultant “tonight”, and at R[86] referred to evidence of the VET consultant that quite a bit of work had already been done by the applicant on a new version of the training package. The Tribunal did not accept the applicant’s evidence about the state of preparation of the draft materials. The Tribunal considered that the failure of the applicant to finalise the new documentation prior to the hearing informed its conclusions that the applicant would be non-compliant with clauses 1.1 and 1.8 of the Standards. In coming to its conclusions, the Tribunal did not impermissibly cast any onus of proof on the applicant, but simply drew conclusions based upon the facts as they were presented. In other words, the Tribunal did no more than form a state of satisfaction about the subject matter of the review upon the material before it.

Grounds 6 and 7: clause 5.1 of the Standards and Student JV’s visa status

86    Grounds 6 and 7 are in the following terms –

6.    The Tribunal took into account an irrelevant consideration in deciding whether there had been non-compliance with cl 5.1 of the Standards, namely the Applicant’s failure to check whether a student had a visa that permitted him to study in Australia.

7.    Alternatively to Ground 6, the Tribunal misconstrued cl 5.1 of the Standards in finding that the Applicant’s failure to provide advice to the student “appropriate to meeting the learner’s needs, taking into account the individual’s existing skills and competencies” (Reasons at [170]-[174]).

Grounds 6 and 7: the applicant’s submissions

87    Counsel for the applicant referred to the Tribunal’s finding that the applicant did not comply with clause 5.1 of the Standards on the basis that the applicant had not enquired whether Student JV had a visa that permitted him to study: see [43(7)] above. The applicant claimed that the Tribunal’s finding involved an error of law in the construction of clause 5.1 of the Standards, and in oral argument senior counsel for the applicant characterised the error as egregious.

88    Clause 5.1 of the Standards is set out in the extracts in the schedule to these reasons. Counsel for the applicant submitted that nowhere in the text of clause 5.1 is there reference to any concept concerning a student’s “entitlement” to study in Australia, such as might be found in a student’s visa conditions. It was submitted that on its face, clause 5.1 is entirely concerned with ensuring registered training organisations do not market courses which are not appropriate to “the learner’s needs, taking into account the individual’s existing skills and competencies”. The term “competency” is defined in the Standards as meaning “the consistent application of knowledge and skill to the standard of performance required in the workplace” and embodies “the ability to transfer and apply skills and knowledge to new situations and environments”. The term “skills” is not defined in the Standards or the NVR Act. In oral argument, senior counsel for the applicant referred to dictionary definitions from the Macquarie Dictionary, the Australian Concise Oxford Dictionary, and the Collins Online Advanced English Dictionary. The Macquarie Dictionary definition of skill provides (inter alia) –

1.    the ability that comes from knowledge, practice, aptitude, etc., to do something well: success derived from skill rather than luck.

89    Counsel submitted that a purposive construction of clause 5.1 showed that it was directed to protection of a student from exploitation by an unscrupulous trainer, purporting to train a student in a course for which he or she was unsuited, taking into account the student’s existing skills and competencies. Counsel submitted that visa status cannot be construed as a “skill” or “competency”. Counsel submitted that the purposive construction showed that considerations relating a person’s entitlement to study in Australia were foreign to clause 5.1 with the consequence that they were irrelevant considerations. In oral argument, senior counsel for the applicant submitted that it could not be clearer that clause 5.1 of the Standards is concerned with the content of the course, and whether the prospective student has existing skills and competencies that make the course appropriate for that student. Counsel submitted that the regime under the ESOS Act was a separate regime, and that the drafters of clause 5.1 of the Standards under the NVR Act had not sought to bring its issues within the scope of the clause.

90    Counsel submitted in the alternative, that even if a registered training organisation was permitted under clause 5.1 to have regard to a student’s visa status (that is, if the consideration is not irrelevant), there was nothing in clause 5.1 which meant that a failure to consider visa status amounted to a failure to “provide advice” to the student about the training product.

Grounds 6 and 7: the respondent’s submissions

91    Counsel for the respondent relied on s 8 of the ESOS Act, under which it is an offence for a person to provide a course of education and training to an overseas student without being registered to do so under the ESOS Act. Section 5 of the ESOS Act defines an overseas student as “a person (whether within or outside Australia) who holds a student visa, but does not include students of a kind prescribed in the regulations”.

92    Counsel for the respondent submitted that it was obvious that if a registered training organisation is not lawfully able to offer a VET course to a student, then that course cannot be appropriate to meet the student’s needs, and the student ought to be told that if the student wished to enrol in such a course, the student needed to do so with a provider registered to offer that course to overseas students under the ESOS Act. Counsel submitted that there was no warrant to read into clause 5.1 a limitation that would exclude such a clear and direct contravention of the responsibility to ensure that prospective students are provided advice which enables them to decide if the course offered by the registered training organisation is suitable for them. Nor, counsel submitted, did the requirement to take into account the student’s existing skills and competencies in ascertaining the student’s needs mean that those needs should exclude the very capacity lawfully to complete the course and obtain a VET qualification at all. It was submitted that accordingly, it was plainly relevant for the Tribunal to take into account the applicant’s failure to adopt a more rigorous process for checking whether prospective students were entitled to enrol with the applicant under the terms of their visa and provide advice to students about their eligibility to enrol.

93    As to the construction of clause 5.1 of the Standards, counsel for the respondent submitted that it was clear from a reading of the Tribunal’s reasons as a whole that the Tribunal’s consideration was not confined to the applicant’s failure to check the student’s visa status, but extended to the failure to advise the student if the student was not eligible to enrol. Counsel called in aid the principle that reasons of an administrative decision-maker should not be over-zealously scrutinised with an eye keenly attuned to the detection of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271-2.

94    In oral argument, counsel for the respondent referred to clause 500.211 of Schedule 2 of the Migration Regulations 1994 (Cth), which provides for the criteria for the grant of a student visa. One of the primary criteria is that the applicant is enrolled in a course of study, which is defined to include a full-time registered course. In turn, a registered course is defined by reg 1.03 to mean –

registered course means a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.

95    Counsel for the respondent submitted that whether the course was one which the registered training organisation was registered to provide under the ESOS Act was relevant to the suitability of the course for the particular student.

Grounds 6 and 7: analysis

96    The applicant’s submissions in support of grounds 6 and 7 should be accepted.

97    Before commencing my analysis it is important to emphasise that there was no issue as to whether the applicant was lawfully able to deliver the training courses to Student JV. At R[170] the Tribunal recorded ASQA’s acceptance that Student JV was entitled to enrol. The argument advanced by ASQA was that the applicant had no system in place that would reliably pick up proposed learners to whom the applicant would not be entitled to deliver training qualifications on account of their status as overseas students.

98    As I have mentioned, s 8(1) of the ESOS Act provides that it is an offence for a person to provide a course at a location to an overseas student unless the person is registered –

8    Offence: providing or promoting a course without a registered provider

(1)    A person commits an offence if the person:

(a)    provides a course at a location to an overseas student; or

(b)    makes an offer to an overseas student or an intending overseas student to provide a course at a location to that student; or

(c)    invites an overseas student or intending overseas student to undertake, or to apply to undertake, a course at a location; or

(d)    holds himself, herself or itself out as able or willing to provide a course at a location to overseas students;

unless:

(e)    the person is registered to provide that particular course at that particular location; or

(f)    the person does so in accordance with an arrangement that the person has with a registered provider for that particular course for that particular location.

Penalty: Imprisonment for 2 years.

99    The Tribunal held at R[174] that in order to ensure that a registered training organisation does not contravene the legislative requirements of the ESOS Act, it was critically important for the organisation to ascertain with certainty the status of the prospective student. The Tribunal held that the applicant’s failure to check the visa status of Student JV by reference to a passport and any visas that he held was non-compliant with clause 5.1 of the Standards.

100    As the text of s 8 of the ESOS Act makes apparent, it is directed at the conduct of course providers rather than students. The focus of clause 5 of the Standards is on advice to prospective learners about training products, and not on the training organisation ensuring that it is not in breach of the ESOS Act. Clause 5.1 of the Standards operates on an implied premise that the training organisation is authorised to deliver to the “prospective learner” the training product that would be the subject of advice before enrolment. The advice that clause 5.1 requires be given is advice “about the training product appropriate to meet the learner’s needs”. This advice is not at large, but is shaped by the concluding words “taking into account the individual’s existing skills and competencies”, indicating that the advice to be given prior to enrolment is about the suitability of the course for the particular prospective student taking into account the student’s existing training and knowledge. As complex as the NVR Act and the Standards are, they have to operate in the real world where the text of the Standards will be the primary source for ascertaining their operation, and the text does not support the scope of clause 5.1 for which the respondent contended.

101    Moreover, there exists a separate clause 8.5 of the Standards which plainly is directed at ensuring that training providers are compliant with legislation. Clause 8.5 provides that an RTO must “compl[y] with Commonwealth, State and Territory legislation and regulatory requirements relevant to its operations.” Reading clause 5.1 within this wider context of the Standards reinforces the interpretation that the clause is directed to ensuring that course advice is appropriate to students’ pre-existing skills and training, not to monitoring the compliance mechanisms of providers.

102    Lastly, the failure of an education provider to comply with clause 5.1 of the Standard would, by operation of reg 5 of the National Vocational Educational and Training Regulations 2011 (Cth), expose the provider to liability for a civil penalty: NVR Act, s 22(1) and s 111(1)(a). To the extent that there was any ambiguity as to whether the language of clause 5.1 should be construed as encompassing an obligation on training providers to have in place visa-checking mechanisms, the penal nature of the clause means that, consistently with the rule of statutory construction referred to by Gibbs J in Beckwith v R [1976] HCA 55; 135 CLR 569 at 576, the ambiguity could be resolved in favour of the applicant: see also Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156 at 164. However, the authorities emphasise that this rule is one of last resort: Newcastle City Council v GIO General Ltd [1997] HCA 53; 191 CLR 85, 102-3 (Toohey, Gaudron and Gummow JJ). Having identified this principle, the penal consequences of a contravention of clause 5.1 do not form part of my analysis because on my construction of clause 5.1 there is no relevant ambiguity to be resolved.

103    In my judgment, the Tribunal’s finding that the applicant did not have a system for checking Student JV’s visa status was not reasonably within the scope of clause 5.1 of the Standards. The finding of non-compliance with clause 5.1 on this ground was therefore outside the “zone” of permissible factual decision-making which therefore involved an error of law that is reviewable under s 44 of the AAT Act: see, Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 at [201] (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ).

Conclusions

104    The Tribunal’s finding that the applicant was non-compliant with clause 5.1 of the Standards contributed to its conclusion at R[211] that the applicant did not meet the conditions for registration under s 21 and s 22 of the NVR Act, which led to its decision to affirm the cancellation of the applicant’s registration as a registered training organisation. Counsel for the applicant relied on the nature of the Tribunal’s decision as a “synthetic decision”, meaning that the ultimate decision was informed by all of its adverse findings. Counsel for the respondent expressly stated that, if an error was found, the respondent did not submit that the error would not be material. The Tribunal’s reasons do not permit the Court to reason as to whether the Tribunal’s decision would have been the same without the finding of non-compliance with clause 5.1 of the Standards. There is a real possibility that the decision could have been different. Therefore, I am satisfied that the error was material.

105    The Tribunal’s decision should be set aside and the case be remitted to the Tribunal for reconsideration. The constitution of the Tribunal will be a question for the President or Acting President of the Tribunal to consider.

106    I will hear counsel as to orders.

Associate:

Dated:    17 March 2023

SCHEDULE OF EXTRACTS

Standards for Registered Training Organisations (RTOs) 2015 (Cth)

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Name of Standards

These Standards are the Standards for Registered Training Organisations 2015. These Standards form part of the VET Quality Framework, a system which ensures the integrity of nationally recognised qualifications.

RTOs are required to comply with these Standards and with the:

•    National Vocational Education and Training Regulator Act 2011 or equivalent legislation covering VET regulation in a non-referring State as the case requires

•    VET Quality Framework

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These Standards should be read in conjunction with the:

•    Standards for Training Packages

•    Standards for VET Accredited Courses

•    Standards for VET Regulators

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Glossary

In these Standards, unless the contrary intention appears:

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Assessment system is a coordinated set of documented policies and procedures (including assessment materials and tools) that ensure assessments are consistent and are based on the Principles of Assessment contained in Table 1.8-1 and the Rules of Evidence contained in Table 1.8-2.

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Australian Qualifications Framework (AQF) means the framework for regulated qualifications in the Australian education and training system, as agreed by the Commonwealth, State and Territory ministerial council with responsibility for higher education.

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Competency means the consistent application of knowledge and skill to the standard of performance required in the workplace. It embodies the ability to transfer and apply skills and knowledge to new situations and environments.

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Recognition of Prior Learning (RPL) means an assessment process that assesses the competency/s of an individual that may have been acquired through formal, non-formal and informal learning to determine the extent to which that individual meets the requirements specified in the training package or VET accredited courses.

a)    formal learning refers to learning that takes place through a structured program of instruction and is linked to the attainment of an AQF qualification or statement of attainment (for example, a certificate, diploma or university degree);

b)    non-formal learning refers to learning that takes place through a structured program of instruction, but does not lead to the attainment of an AQF qualification or statement of attainment (for example, in-house professional development programs conducted by a business); and

c)    informal learning refers to learning that results through experience of work-related, social, family, hobby or leisure activities (for example the acquisition of interpersonal skills developed through several years as a sales representative).

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Training and assessment strategies and practices are the approach of, and method adopted by, an RTO with respect to training and assessment designed to enable learners to meet the requirements of the training package or accredited course

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Standard 1.    The RTO’s training and assessment strategies and practices are responsive to industry and learner needs and meet the requirements of training packages and VET accredited courses

Context:

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To ensure thorough and rigorous assessment practices and results, RTOs must implement a comprehensive plan of systematic validation. RTOs must use a risk-based approach to developing the plan considering risk indicators such as the potential safety concerns to clients from an assessment outcome that is not valid, the mode of delivery, changes to training packages and/or licensing requirements.

Trainers and assessors who are involved in training and assessment delivery being considered as part of the validation process may also participate in the validation process.

There are differences in the operating characteristics and business objectives of RTOs and the evidence RTOs use to demonstrate compliance with this Standard will reflect those differences.

To be compliant with Standard 1 the RTO must meet the following:

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.

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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.

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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.-2.

Table 1.8-1: Principles of Assessment

Table 1.8-2: Rules of Evidence

Trainers and assessors

1.13.    In addition to the requirements specified in Clause 1.14 and Clause1.15, the RTO’s training and assessment is delivered only by persons who have:

a)    vocational competencies at least to the level being delivered and assessed;

b)    current industry skills directly relevant to the training and assessment being provided; and

c)    current knowledge and skills in vocational training and learning that informs their training and assessment.

Industry experts may also be involved in the assessment judgement, working alongside the trainer and/or assessor to conduct the assessment.

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1.16.    The RTO ensures that all trainers and assessors undertake professional development in the fields of the knowledge and practice of vocational training, learning and assessment including competency based training and assessment.

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Transition of training products

1.26.    Subject to Clause 1.27 and unless otherwise approved by the VET    Regulator, the RTO ensures that:

a)    where a training product on its scope of registration is superseded, all learners’ training and assessment is completed and the relevant AQF certification documentation is issued or learners are transferred into its replacement, within a period of one year from the date the replacement training product was released on the National Register;

…

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Standard 3.    The RTO issues, maintains and accepts AQF certification documentation in accordance with these Standards and provides access to learner records.

Context:

To maintain the integrity and national recognition of training products, AQF certification must be consistent in presentation and RTOs must accept the certification issued by other RTOs. This is the purpose of nationally agreed requirements about the nature of certification content and presentation and maintenance. Learner needs should be met through timely issuance of AQF certification documentation and access to their records.

RTOs are not obliged to issue any certification that would be entirely comprised of units or modules completed at another RTO or RTOs.

To be compliant with Standard 3 the RTO must meet the following:

3.1.    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.

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Standard 4.    Accurate and accessible information about an RTO, its services and performance is available to inform prospective and current learners and clients.

Context:

The RTO is ultimately responsible for ensuring transparent and accurate information about RTO services and performance is accessible to prospective and current learners and clients of the RTO, regardless of any arrangements to have this information distributed on behalf of the RTO.

Transparent and accurate information about RTO services and performance enables prospective and current learners and clients to make informed decisions regarding their training and/or assessment needs.

The information about RTO services and performance provided by the RTO must be relevant to and reflect the needs of the client which will vary from RTO to RTO.

To be compliant with Standard 4 the RTO must meet the following:

4.1    Information, whether disseminated directly by the RTO or on its behalf, is both accurate and factual, and:

a)    accurately represents the services it provides and the training products on its scope of registration;

b)    includes its RTO Code;

c)    refers to another person or organisation in its marketing material only if the consent of that person or organisation has been obtained;

d)    uses the NRT Logo only in accordance with the conditions of use specified in Schedule 4;

e)    makes clear where a third party is recruiting prospective learners for the RTO on its behalf;

f)    distinguishes where it is delivering training and assessment on behalf of another RTO or where training and assessment is being delivered on its behalf by a third party;

g)    distinguishes between nationally recognised training and assessment leading to the issuance of AQF certification documentation from any other training or assessment delivered by the RTO;

h)    includes the code and title of any training product, as published on the National Register, referred to in that information;

i)    only advertises or markets a non-current training product while it remains on the RTO’s scope of registration;

j)    only advertises or markets that a training product it delivers will enable learners to obtain a licensed or regulated outcome where this has been confirmed by the industry regulator in the jurisdiction in which it is being advertised;

k)    includes details about any VET FEE-HELP, government funded subsidy or other financial support arrangements associated with the RTO’s provision of training and assessment; and

l)    does not guarantee that:

i)    a learner will successfully complete a training product on its scope of registration; or

ii)    a training product can be completed in a manner which does not meet the requirements of Clause 1.1 and 1.2; or

iii)    a learner will obtain a particular employment outcome where this is outside the control of the RTO.

Standard 5.    Each learner is properly informed and protected.

Context:

In order to ensure that learners are adequately informed about the services they are to receive, their rights and obligations, and the RTO’s responsibilities under these Standards, the RTO must provide learners with information prior to commencement of services including any third party arrangements affecting the delivery of training and/or assessment. This is to occur regardless of the manner in which the learner has been engaged, and whether the learner was initially engaged by the RTO itself or a third party.

The RTO is to provide or make readily available information to the learner that outlines the services the RTO will provide the learner, along with the rights and obligations of the learner and the RTO.

The RTO may provide information to the learner through one or more documents, for example an enrolment form, policy, employment contract or agreement, induction handbook or documented practice, training plan or training contract.

To be compliant with Standard 5 the RTO must meet the following:

5.1.    Prior to enrolment or the commencement of training and assessment, whichever comes first, the RTO provides advice to the prospective learner about the training product appropriate to meeting the learner’s needs, taking into account the individual’s existing skills and competencies.

5.2.    Prior to enrolment or the commencement of training and assessment, whichever comes first, the RTO provides, in print or through referral to an electronic copy, current and accurate information that enables the learner to make informed decisions about undertaking training with the RTO and at a minimum includes the following content:

a)    the code, title and currency of the training product to which the learner is to be enrolled, as published on the National Register;

b)    the training and assessment, and related educational and support services the RTO will provide to the learner including the:

i)    estimated duration;

ii)    expected locations at which it will be provided;

iii)    expected modes of delivery;

iv)    name and contact details of any third party that will provide training and/or assessment, and related educational and support services to the learner on the RTO’s behalf; and

v)    any work placement arrangements.

c)    the RTO’s obligations to the learner, including that the RTO is responsible for the quality of the training and assessment in compliance with these Standards, and for the issuance of the AQF certification documentation.

d)    the learner’s rights, including:

i)    details of the RTO’s complaints and appeals process required by Standard 6; and

ii)    if the RTO, or a third party delivering training and assessment on its behalf, closes or ceases to deliver any part of the training product that the learner is enrolled in;

e)    the learner’s obligations:

i)    in relation to the repayment of any debt to be incurred under the VET FEE-HELP scheme arising from the provision of services;

ii)    any requirements the RTO requires the learner to meet to enter and successfully complete their chosen training product; and

iii)    any materials and equipment that the learner must provide; and

f)    information on the implications for the learner of government training entitlements and subsidy arrangements in relation to the delivery of the services.

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Standard 8.    The RTO cooperates with the VET Regulator and is legally compliant at all times.

Context:

RTOs need to comply with the requirements of the RTO Standards as well as other relevant Commonwealth, State and Territory legislation. This is critical if RTOs are to deliver training products that have integrity and which fulfil their obligations to their clients. It is important that third party arrangements are documented and transparent to facilitate the Regulator’s knowledge that such arrangements exist. This will enable them to factor this into the risk profile they apply when enforcing compliance with the Standards and to review, in the context of RTO audits, the terms of the third party arrangements and the effectiveness of the arrangements in facilitating compliance with these Standards.

To be compliant with Standard 8 the RTO must meet the following:

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8.5.    The RTO complies with Commonwealth, State and Territory legislation and regulatory requirements relevant to its operations.

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