Highlights:

  • ASQA is increasingly using the AAT as a vehicle for extinguishing RTOs simply by legal cost and reputational damage and delay
  • ASQA appears to be deliberately engaging in legal tactics designed to damage the respondent rather than just arriving at some form of clarity
  • It has become increasingly difficult to establish any form of rapport with ASQA
  • ASQA’s aggressive and adversarial conduct is of concern:
    • focusing only on regulatory activities and not on capacity building
    • not providing clarity, as evidenced by the usual response, ‘we are regulators, not consultants’
    • cultivates student complaints for the purpose of building a case against RTOs
  • Rectification should be made available

Last July 31st, Andrew Laming MP gave a speech after a nationwide investigation of the performance of ASQA monitoring and regulating the training sector.

His speech focused on ASQA’s regulatory practices, highlighting the concerns shared by independent providers in the higher education, vocational education and training sector:

  • ASQA’s increasingly ‘aggressive and adversarial conduct’ in conducting its regulatory duties
  • Inconsistencies in the audit process
  • ASQA using AAT as a ‘vehicle for extinguishing RTOs simply by legal cost and reputational damage and delay’

With this, he cited a couple of specific examples that many of you, unfortunately, may be able to relate with:

  • Being taken by surprise receiving an audit report riddled with critical non-compliances when everything seemed in order during the audit
  • Critical non-compliances decided based entirely on remote desk audits, without the regulator ever visiting the RTO
  • Not getting any answers or clear guidance on the non-compliances identified, as ‘they are regulators and not consultants’
  • Not getting any chance to clarify bases of decisions, and just being referred straight to the AAT
  • Being given serious sanctions despite the risks being ‘administrivia’, e.g. incorrect colour of logo, incomplete logs, advertising ‘close to a train station’ when this is not the case by Australian standards, etc.
  • Activating and cultivating student complaints for the purpose of building a case against the RTO

Although there is some comfort knowing that long-overdue attention is now being drawn to the matter, until changes are implemented to address these concerns, RTOs remain vulnerable to them.

So how can you prepare your RTO against these threats?

Simple: Be prepared in theory and in practice, and don’t be afraid to ask for help.

1. Be prepared in theory

Understand the relevant Standards, legislation and best practices you are expected to comply with. Depending on what’s relevant with your organisation, this may include:

Educate yourself, so you are equipped to run your RTO according to these Standards and defend it in an audit or in AAT if needed.

2. Be prepared in practice

You have to walk the talk and demonstrate through verifiable evidence that you are compliant with all relevant standards through systematic implementation. This means all relevant Standards, legislation and best practices are reflected in your:

  • Policies and Procedures
  • Implementation tools (forms, systems, templates, etc.)
  • Evidence of practice (e.g. completed forms and templates)

3. Don’t be afraid to ask for help

  • If you are not 100% confident with your understanding of the regulations and the regulatory processes that impact your RTO, getting professional advice is invaluable. This will allow you to leverage your consultants’ experience dealing with regulators across a wide range of training and assessment contexts and compliance scenarios.
  • If needed (and if your budget permits), as may be in the case of the AAT appeals, lawyer up. As described by Mr. Laming in his speech, many RTOs just give up over the fear of being sucked into a long, complicated and expensive litigation battle against ASQA. Having someone on your side who knows the ins and outs of the process will help you make informed decisions about how to proceed, instead of just backing out when you have a good case all along, or foolishly battling it out with ASQA ‘to the death’ when you never had the chance.
  • Although getting professional help may just sound like an additional expense in the beginning, in the long run, getting the right professional help will actually save you time, money, and stress.

In conclusion, there are two things you can take away from Mr. Laming’s speech:

  1. That this issue is now brought to the attention of the parliament, and that it will hopefully start driving positive changes in the process
  2. That the concerns Mr. Laming has raised are very real, and that all RTO providers will remain equally vulnerable to it until changes are made

However you want to take it, at the end of the day, the saying “an ounce of prevention is worth a pound of cure” holds true for all RTOs.

Do not wait for rectification opportunities, as you may not be given one.
Do not wait to be sent to the AAT to ‘lawyer up’, as this is a painfully long, stressful and expensive process.
And definitely do not wait for the process to change, as it may yet be another few years. Being prepared NOW is the key.

 

Here’s the speech of Mr. Andrew Laming MP (video uploaded to his channel on YouTube)