A rapid review of the Australian Skills Quality Authority (ASQA) has been announced. We are sharing the details of the review with this article. 
Two recent national reviews have focused on the VET sector, including the role of ASQA – the 2019 Expert Review of Australia’s VET System (the Joyce Review), and the 2018 review of the National VET Regulator Act 2011 (the Braithwaite Review). Both reviews identified the need for ASQA to reform elements of its regulatory approach, in particular, its engagement with the sector and its educative approach.
While in recent years ASQA has focused much of its regulatory effort on the poorest performing providers, and removing them from the market, there is now an opportunity to strengthen ASQA’s focus on building capability and fostering excellence across the VET sector.
ASQA Reform
On 30 October 2019, the Australian Government announced $18.1 million towards the reform of ASQA to support the fair, transparent and effective regulation of the VET sector, and high-quality student outcomes. The reform is intended to:

• position ASQA as an effective modern regulator and to deliver on future reform directions agreed  through the COAG reform road map
• improve and expand ASQA’s engagement with the VET sector and educative role to ensure training providers are aware of, and supported to understand, expectations and requirements
• ensure regulatory decisions are transparent, and that training providers have access to information and support to deliver good practice training and assessment
• improve ASQA’s collection and use of data to assist with identifying poor quality training providers, and
• better enable training providers to give feedback on ASQA (including directly to the Department of Employment, Skills, Small and Family Business).

Informing the reform
To inform the detail of the reforms, the department has engaged a regulatory expert to undertake a rapid review of ASQA’s regulatory practices and processes, and make recommendations for specific changes in line with best practice governance, regulation and engagement.
The rapid review will:

• evaluate the effectiveness of ASQA’s internal regulatory practices and processes (including ASQA’s Regulatory Risk Framework, how it undertakes audits, how it makes and internally reviews regulatory decisions, and processes related to the review of ASQA decisions)
• identify and recommend any changes to ASQA’s processes to support consistent, risk-based and contemporary regulatory decision-making and education
• identify and recommend any changes required to ASQA’s governance arrangements to clarify roles and responsibilities, improve accountability, improve the efficiency of resources, and improve focus on strategic direction and performance, and
• identify areas in which changes could be made to the VET Quality Framework to drive improvements across the sectors.

The review is scheduled to be completed by early February 2020. Following the review, the reforms will be implemented over a 12-18 month period of change management.
Consultation
Recent reviews have sought feedback from the sector on the role of ASQA in regulating the VET sector. This feedback has informed the scope and focus of this rapid review and will be closely considered by the regulatory expert.
The department welcomes any additional feedback from stakeholders relevant to ASQA’s internal regulatory practices and procedures. In providing feedback, stakeholders are encouraged to consider the following questions:

• How can ASQA best engage with the VET sector? 
• What strategies could be adopted by ASQA to support best practice among training providers?
• What elements of its current educative approach are the most effective? 
• How can ASQA best help training providers to understand their obligations?
• What elements of ASQA’s current regulatory approach do you perceive to be working effectively? What specific areas would benefit from further attention?

Feedback should be sent to ASQAreform@employment.gov.au by COB Friday 17 January 2020. This feedback will be provided directly to the regulatory expert engaged to undertake the review.
Reference: ASQA Reform

In this section we explore stories of how a regulatory body is destroying Australia’s education and training sector, the livelihood of people and causing immense stress and loss to the individuals working in the training organisations.

Our first guest in this series is Brett Hilder. 

Brett Hilder is a businessman with extensive experience drawn from his creation of a national training company and is able to bring together an understanding of the urgencies of commerce together with an appreciation of the priorities of public agencies.

In the past he has been able to negotiate positive changes in public policy, government agencies and procedures through the incisive understanding of relevant key issues, and a proper insight into the public sector approach. For example, he played the key role in convincing the Australian government to conduct a review of federal agencies through public advocacy during the period 2012 – 2015. This resulted in major reforms to the regulatory environment in the Vocational Education and Training (VET) industry.
In addition, working directly with large corporations over the last 25 years has provided him with a valuable understanding of how they interact with small and medium sized enterprises (SME’s).
He has written two books on time management and workplace productivity, delivered keynote addresses and run seminars on business development, productivity, leadership and advanced negotiation strategies. High level one-to one coaching, hands on skills training in the general workplace and in the health sector specifically, have seen over 2000 people acquire skills and knowledge which enabled them to excel in their chosen professions and attain jobs.
Brett is ready to assist organisations arm themselves properly to enable them to address concerns in public administration in order for them to protect their rights, title and interests in their respective businesses. He is also a lobbyist listed with the Australian Federal Government and a member of the VET Reform Now network.

Q: Brett, can you please tell us something about yourself, your background and what you do?

I’m a businessman at base level having grown up a third-generation farmer. Agriculture seems a long time ago now, however it instilled in me a fundamental understanding of the robust and honest demands on the individual of business reality. That is, results count, and you succeed or fail on your own merits, even though elements such as the weather for example, are beyond human influence.

I first established my own business, a small management consultancy, in Perth in the mid 1990s focusing on time management and workplace productivity for individuals and organisations. I wrote two books on the subject and was deeply immersed in this area for several years.

Q. What drew you into training for the health industry?

I had a motorcycle crash in 1999. Unable to continue the paid work I was doing while my consultancy established a secure income stream, I completed a nurse assistant training course, and for a short time worked in this role. The consultancy grew though, and I was able to focus full time on developing it after only a few months, nevertheless I learnt a hell of a lot about basic patient care.

My ex-wife is a registered nurse and it seemed worthwhile at the time to develop a training course for nurse assistants suitable for hospital and aged care at cert three-level. It took twelve months of hard work and in August 2001 we ran our first
course. It was oversubscribed with 26 students, but we made it work and nearly all were successful. Every graduate got a job immediately and the work experience employers we worked with were delighted and we were off and running.
 

Q. How did it go?

In 2003, my company amended scope and was able thereafter to issue the nationally recognised Certificate III qualification for Patient Care Assistants under the WA jurisdiction (TAC). Through 2008-2009 we expanded from WA into Victoria, New South Wales, South Australia and Queensland. The workload was immense of course, but extremely rewarding. Our reputation amongst employers and students was I believe, second to none. By 2010, we had already received two letters of commendation from TAC for our levels of compliance and innovation.

ASQA, as you know, destroyed everything in 2011-12. In the seven years since, I have been working hard to drive real VET reform. During the same period, I have had 15-17 months paid work.

Q: What are your experiences dealing with the current national VET regulator?

It can be summed up by the first ever contact we had from ASQA dated September 2011: A letter of intention to suspend our registration, with just over two days to respond.

This was the result of a secret desk audit, conducted on incomplete site audit documents against the old standards conducted by the state regulator, TAC. We hadn’t even received the mandatory Certificate of Registration as an RTO under ASQA, which itself is a breach of the NVR Act.

It was a hostile attack utilising faulty data while breaching the very laws the regulator was charged with upholding. It went downhill from there.

We were subject to a highly prejudicial audit process, a cut in funding support to the 20% of students we were training who were relying on it, ordered not to supply compliance documents to the auditor, a refusal to engage with us on rectification or clarification of our levels of compliance and factually incorrect assertions of complaints and risks against my RTO by the Chief Commissioner, Christopher Robinson and Assistant Commissioner Dianne Orr.

Of course there was a blanket refusal to take into account or even acknowledge the outstanding reputation among industry stakeholders and 7000 students we had built over a decade. ASQA used it’s lawyers to attack my company at every opportunity.

Q. What do you believe were their motivations for this behaviour?

The national VET regulator was clearly going after us because for base political The national VET regulator was clearly going after us because for base political reasons: so that it could demonstrate it was a ruthless regulator, regardless of the true level of our compliance. We were fully compliant. Looking back, this tactic was all ASQA had, because then, as now, it did not understand training, it did not understand assessment and it did not understand compliance. My company however, did understand all of these matters having worked through the turbulent and ever changing regulatory environment of the preceding decade.

Q: What did you do to get justice and how was your journey?

Everything short of taking ASQA to court. The nature of the way ASQA ‘audits’ private RTOs cripples the income stream and this in most cases ensures the RTO can no longer fund the $250-300,000 necessary.  

What ASQA did not know, was that at this time my girlfriend was an experienced senior corporate lawyer. In one weekend, she and I discovered the first 23 breaches of the NVR Act by ASQA in dealings with my company. We also uncovered another 20+ instances of abuse of process and breaches of procedural fairness (rules of Natural Justice).

I was the first to take ASQA to the Administrative Appeals Tribunal on July 2-4, 2012 but they could only look at compliance against the original woefully nebulous standards for RTOs. (Even after 2015, they are still open to interpretation in order to be applicable to all training). Against ASQA’s legal team and their illegitimate tactics, I lost the case because of interpretations of compliance. The AAT however, found that my company was. “…a training provider of quality.”

None of the breaches in law and abuses of process by ASQA were considered by the Tribunal.

Still seeking justice, requesting documents under the FOI Act turned out to be a slow pointless exercise, and even lawyers now will have no success in getting the documents you are entitled to, due to the cop-out provisions built into this now largely worthless piece of legislation.

You are advised to be patient and trust the process. Ignore this advice. Here’s why:

Step One: You complain to ASQA. The regulator, eventually, tells you nothing was done incorrectly with regard to your case. Not satisfied, you go to

Step Two: Lodge a formal complaint with the Commonwealth Ombudsman. However, they advise they cannot investigate your contentions because it would only have been possible at the immediate time.

Step Three: You request documents under FOI from ASQA, but receive only 25% of those requested due to the cop-out provisions built into this now largely worthless piece of legislation. The docs you do get contain only administrivia. Then follows:

Step Four: You request a Freedom of Information dispute resolution to obtain the docs from ASQA, this time through the Office of the Australian Information Commissioner.

You are advised you must wait a year for an officer to become available and conduct the review. (The I-C is under-resourced owing to the upsurge of cases where government agencies refuse FOI requests).

The Commonwealth Ombudsman is impotent.

I discovered secret reports with recommendations about your RTO’s matters, including their advice regarding compensation, are provided by ASQA to the Minister. You make an FOI request to ASQA to acquire copies of these reports and end up repeating Step 3 and Step 4.

Transparent government is a myth when it comes to matters of justice where a bureaucrat is culpable.

The only opportunity for restorative justice for someone in my position is the CDDA Scheme (Scheme for Compensation for Detriment caused by Defective Administration).

In the end, 51 breaches of the NVR Act and procedural fairness by ASQA were identified and these formed the basis of my claim for compensation. In a process designed to fail the applicant, my claim was rejected out of hand because it can only be assessed by the offending government agency, in this case, ASQA. All I got was a one-pager stating ASQA did everything right. It is a joke.

The CDDA Scheme on the face of it is a fair option for compensation, however in practice, it seldom works because of the conflict of interest built into the process. A decision does not have to be made based on court-of-law proof, weight of evidence or even balance of probabilities, rather that a reasonable person in possession of the relevant information forms the view that wrong has been done to the individual or organisation. In practice, the CDDA Scheme was put in place by politicians only to be abused by bureaucrats.

Despite requests, I was never granted a meeting with any Minister, however I appealed through his office a few times. All they did was ask ASQA for their opinion who in turn provided him with false advice, and my claim was rejected without explanation again. I have requested that succeeding Ministers properly review my claim but none have, and all have simply responded with one-pagers claiming ASQA did everything right. To this day, not one of my 51 contentions of defective administration by the regulator have been answered.

Justice delayed is justice denied and I’ve been trying and waiting for nearly eight years so far.

Having nothing to lose as of 2012, I committed myself to transparency and investigation of ASQA along with additional true reform of VET. This formed part of the strategy for compensation for my family as I became aware there was no viable process to receive justice and no good-will in government to restore what it had taken from us.
 

Q: I have heard several times before this interview that you have lost a lot because of ASQA, can you please elaborate what, why and how for us and our readers?

I lost my livelihood and everything else: Family home, cars, business, two new investment properties which were going to help provide security for everything, superannuation and my reputation (because ASQA makes its decisions public). Forced into bankruptcy (Fairfax media unpaid account of $6800) and suffered significant damage to my health also for my trouble.

It’s probably not a good idea to borrow money against the equity in your family home to fund business growth or development if you’re in ASQA’s jurisdiction. Looking back, one thing I would do differently is use trusts to provide some security, at least against the thugs.

Problem is, we were going through significant, planned, growth. Despite the usual inherent challenges, it was working well and our quality was never compromised, however unless you are debt free and holding a significant war chest of funds, ASQA simply abuses its powers to cut off an RTOs income stream indefinitely, forcing its liquidation. That is what happened to my company.

Q: Where do you think the ministers are failing to protect Australian education and training businesses? 

1. The majority have been captured by ASQA. This the fault of the ministers themselves.

2. They have been too afraid, or too willing to believe ASQA, to conduct a parliamentary inquiry or Royal Commission into the regulator.

3. There has been an utter failure to decisively act on the concerns, experiences and information provided by SME RTOs.

4. Ministers conflate the wrongdoing of a small number of cashed-up, lawyered-up ghost or very large RTOs, with the quality training delivered by the 4000+ SME RTOs.

5. They put too much store in the opinions of the large vested interests that make up these more-of-the-same ‘consultative’ committees.

6. The Prime Ministers thus far have shuffled countless different ministers through the VET portfolios so that they never wind up getting to grips with a very complex and difficult sector. Permanence is power. Impermanence is impotence.

7. Ministers have failed to investigate ASQA fully, abolish it and replace it with a fit-for-purpose regulator staffed by different people working to an ethical, transparent public service culture; if such a thing still exists.

Note: The views and information provided in this article are independent views of the guests. Career Calling, CAQA or any of our staff members may not share the same views or thoughts. 

Would you like us to interview you for this series? Contact us today at info@caqa.com.au. 

The effects of the VET regulator’s actions on our industry and Australia’s reputation with regards to innovative learning has been detrimental to what is internationally seen as best practice.  The attitude towards learning methods that are applied outside traditional face-to face classroom based training have put our education system at risk.  We are not reaching out to the learners that desperately need training and education but rather asking them to fit the traditional classroom mold. 

Introduction 

It was the early 1970s when computer technology was introduced. The early 1980s we had .edu/.gov/.com and a variety of other domain names.  In the early 1990s the world wide web was introduced to the public. The early 2000s saw  e-commerce, m-commerce, online learning and education set to flourish across the globe. 

After almost 30 years of the internet being available to the general public and becoming one of the most important commodities, we are writing this article to discuss the advantages of providing online education and digital literacy and asking where Australia is standing today in terms of global trends.   
 

Information technology and digital literacy 

Since the arrival of information technology and digital literacy, the relationship between learners and educators has been transformed. Learners today have access to a variety of sources of information through the internet, television and other mediums rather than just relying on books and what is taught in the classroom. Consequently, the training and education approach for curious minds has changed and has gradually become more collaborative and interactive, by digital means, all over the world. We have however found, through official submissions and audit reports, that Australia’s Vocational Education and Training Sector Regulator – Australian Skills Quality Authority (ASQA) considers online education as “high risk” and have audited and closed down a number of vocational education and training providers because they were providing online education. 

Digital education is a revolutionary means of transmitting knowledge and now plays an important role for learners. This country is experiencing a number of challenges such as outdated teaching methods, a lack of qualified and competent industry trainers and staff that want to work in the vocational education and training sector, a highly disproportionate student-trainer ratio and a lack of quality education and learning material.

We strongly believe that online education should be promoted rather than demoted by the regulatory body. Online learning can supply educators and trainers with training resources and engage learners in many ways by using multimedia training tools, interactive e-classrooms, utilising digital tools such as smartboards, Led screens, videos, etc. It also allows one trainer to provide information digitally across several locations via immersive digital media to tackle the country’s qualified trainer shortage.

Transparency and skillset needed from a regulator as a model litigant 

The industry needs a regulator who makes fewer mistakes, takes into account due diligence and does not have a heavy-handed approach when it comes to dealing with innovative practices in training organisations. 

How many criteria of the Regulator Performance Framework, released by the Australian Government does the Australian Skills Quality Authority (ASQA) meet?  

For more information click here.

Can ASQA provide a report as to how they are meeting their KPIs like other government departments do, for e.g. The Department of Health produces as part of their self-assessment?

For more information click here. 

• KPI 1 Regulators do not unnecessarily impede the efficient operation of regulated entities

• KPI 2 Communication with regulated entities is clear, targeted and effective

• KPI 3 Actions undertaken by regulators are proportionate to the regulatory risk being managed

• KPI 4 Compliance and monitoring approaches are streamlined and coordinated

• KPI 5 Regulators are open and transparent in their dealings with regulated entities

• KPI 6 Regulators actively contribute to the continuous improvement of regulatory frameworks

In civil litigation, the Commonwealth has a duty to act as a Model Litigant.

For more information click here. 

ASQA, as a Government Agency has a duty and a responsibility to ensure they remain fair, impartial and maintain proper standards in litigation. 

In simple terms, the model litigant obligation requires the government (including ASQA) to apply the highest standards of ethical behaviour at all times including during court and tribunal cases. Specifically, the Legal Services Directions 2017 explains government bodies are obliged to be a model litigant and should always:

• deal with claims promptly without causing delay

• act consistently in all matters

• attempt to avoid, prevent and reduce the scope of litigation

• keep costs as low as possible

• try not to take advantage of the other party, especially if they lack resources, and

• avoid relying on technical defences.

In addition, ASQA has an obligation to assist the Tribunal under section 33 (1AA) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). This section requires that ASQA must focus on assisting the Tribunal to make the correct decision, rather than defending its own original decision. This duty to assist the Tribunal means ASQA should be:

• making information easily available to the Tribunal

• avoiding delays, and

• actively presenting new material (such as evidence of remedial action)

Further, ASQA’s legal practitioners have additional general duties to the Tribunal. These include the duty not to mislead the Tribunal regarding facts or law, the duty to produce all relevant documents under section 37 AAT Act and the duty to disclose the whole of the law, even if they believe it to be unhelpful or inapplicable.

Australia internationally 

We can learn a lot just by observing and looking at how other countries have achieved an excellent vocational education and training sector and how they are making continuous progress to achieve excellence. 

Let’s take the example of Finland, where vocational education and training (ammattikoulu) is very flexible, not only for highschool students but also for adults, looking for a career change or those who want to supplement their skills in their current occupation. 

Finland in 2018 shifted its system-centred approach to a competency-based system.  The courses are available through education and training institutions, workplaces and in digital learning environments.

Microcredentials (short courses to improve skills in a particular industry area) are available in preparatory education and training not leading to a qualification. VET providers are municipalities, federations of municipalities, a state-owned institution and foundations. The foundations consist mainly of municipalities and various private organisations and companies, all of which are government dependent.

Organisations are required to follow national qualification requirements, but they have the freedom to select teaching/learning methods, learning environments and pedagogical solutions, such as traditional contact teaching, simulators and other digital learning environments, and workplaces for learners.

Understanding Ai, machine learning and datafication works will be necessary skills that future employees in Australian Industries will require. Who is going to provide this and how can we do it? Look at https://aiclass.se/ for a Swedish solution to this skills shortage.

Reaching out to the students can not afford face to face training 

In 2016, the World Economic Forum proposed eight digital skills that every child needed and a plan for teaching them. 

The challenge for educators, according to the WEF, is to “move beyond thinking of IT as a tool, or ‘IT-enabled education platforms’ ”, and instead “to think about how to nurture students” ability and confidence to excel both online and offline in a world where digital media is ubiquitous”.

The OECD agrees, warning in its Going Digital series https://www.oecd.org/going-digital/ that despite our depiction of young people as “digital natives”, the technology skills of students often are limited to basic communication and browsing capabilities, and studies consistently find that digital technology is associated with moderate learning gains but the impact is variable.

Technological change is especially important in Australia, where the challenges of geography affect all areas of policy making, and growing regional unemployment is front and centre.

The National Centre for Vocational Education Research has proposed an Australian workforce digital skills framework such as that which already exists in the EU’s DigComp (digital competencies) framework https://ec.europa.eu/jrc/en/digcomp

Understanding artificial intelligence, machine learning and datafication works will be necessary skills that future employees in Australian Industries will be required to have. Who is going to provide this and how can we do it? Look at https://aiclass.se/ for a Swedish solution to this skills shortage. 

We need a number of quality education and training organisations that can provide students education and training in the home or at work or wherever and whenever wanted.  Education needs to be affordable and not require travel, come with parking expenses or only fits between certain hours. Important questions we need to ask are: 

1. Why is flexible, online learning and digital learning not being promoted by the national regulator?

2. Why do we still not have an Australian workforce digital skills framework to promote, enhance and regulate the learning and outcomes in the digital space?  

We have evaluated how fair and transparent the internal workings of Australian Skills Quality Authority (ASQA) is. Where can an RTO go to complain and seek justice? How effective are the “external avenues”? 

ASQA’s auditors on the day of the audit 

Please note: ASQA has engaged some very professional officers and auditors as well and we highly respect their integrity, values and ethics. No one should have any issues with auditors if they are compliant with the regulatory standards and expectations, legislative and regulatory requirements and expectations from their job-role and status.    

However, some auditors, high on the dose of power of being an auditor come across as unchallengeable even when they do not have industry experience and audit outside their scope.. Their approach to the audit has been to treat the RTO as if a crime has been committed and view them as guilty until proven innocent. There are records of comments being passed that many would view as unprofessional, offensive and derogatory. 

One TAFE person mentioned a particular incidence where an auditor in his 30’s had to repeat his questions twice to an industry trainer in his late 70’s (with 40 years of experience in the VET Industry). The auditor got annoyed that the trainer did not hear him or understood the question the first time around and said ” I’m not sure which planet he is from”. 

Why has an environment been created and even promoted for auditors and officers to behave and act in this way? Can the culture be changed? 

If the auditors are unapproachable and unaccountable, the RTO does not get the opportunity to lodge an informal complaint and resolve any concerns during the audit. 

ASQA’s Governance, Policy and Quality team

Assume that you have a genuine complaint that has not been resolved informally during the audit and you now want to lodge a formal complaint. 

ASQA’s Governance, Policy and Quality department  is responsible for the investigation. 

You assume that this department, as it is mentioned on ASQA’s website operates independently from ASQA’s operational units and they will genuinely look into your complaint, investigate and provide you with a detailed response of the outcome. After all it is in everyone’s interest to continuously improve practice.

Many RTOs who have contacted us have, however, told us that their experience is that this department will try their very best to bury the evidence, take in excess of 90 days to finalise a complaint and when it gets back to you, it supports ASQA’s decision. 

In our investigation, we have come across a number of investigations conducted by the Governance, Policy and Quality team, where credible evidence has been given to them to investigate.  They simply refused to acknowledge this evidence or just relied on the version given of the person or persons who the complaint is against. 

We are interested to know how many times ASQA’s Governance, Policy and Quality team has genuinely investigated a matter and what the outcomes of the investigations have been. 

The information that we have received is that if RTOs get told that everything was done correctly with regards to their case and if they are not satisfied with the outcome of the investigation they can go to the Commonwealth Ombudsman. 

Right of access under the FOI Act

You then apply to get information through a Freedom of Information (FOI) request to understand what is going on and why a regulatory body is involved in this type of practice. 

The Freedom of Information Act 1982 (the FOI Act) seeks to give the Australian community access to information held by the Australian Government. ASQA manages requests for information in accordance with the guidelines issued by the Australian Information Commissioner under s93A of the FOI Act.

Guess, who has the power to release Freedom of Information (FOI) information to you? 

Gold coins if you guessed it correctly!  Yes, ASQA’s so-called independently operating Governance, Policy and Quality unit. 

If they were not able to investigate your complaint appropriately and correctly, then what information would they release under freedom of information act?  

You guessed it right, you are likely to get nothing. 

Their best route is sec 24AA, that states  “the request of releasing the information would substantially and unreasonably divert the resources of the agency from its other operations”.  

This is the common reason most government agencies refuse FOI applications.

24AA When does a practical refusal reason exists?

The Act contains two practical refusal reasons. The first is that processing the request would substantially and unreasonably divert the resources of the agency from its other operations (s.24AA(1)(a)). An agency may also refuse an FOI request if the agency is satisfied that the request does not provide such information concerning the document as is reasonably necessary to enable a responsible officer of the agency to identify the document in question (s.24AA(1)(b)). 

Even if they release any information to you, it will not be useful to you. 

You then request a Freedom of Information dispute resolution to obtain the documents from ASQA through the Office of the Australian Information Commissioner and you are advised that you must wait a year for an officer to become available and conduct the review.

Commonwealth Ombudsman 

ASQA’s Governance, Policy and Quality team provides you an option to lodge your complaint to the Commonwealth Ombudsman. 

You lodge a formal complaint with the Commonwealth Ombudsman but you are advised that they cannot investigate your contentions because it would only have been possible at the immediate time or alternatively they can not think of any better outcome in your particular matter. 

Ministerial intervention 

Ministers are helpless and incapacitated as ASQA has been set-up as an independent statutory regulatory body. 

You realise this when you contact them and ask for help and  you will get one of these outcomes: 

• No reply as they do not understand much of vocational education and training sector, 

• ASQA is doing the right thing and pursuing some kind of investigation on your RTO 

• They understand and know how rogue the regulatory body is but they tell you they can not do anything until they change the legislation and regulatory standards 

You may apply for a Ministerial intervention but in most cases, Ministers simply takes advice from the Regulator itself and of course, you receive a one-pager stating ASQA did nothing wrong. 

Case closed. 

What do you do then and what help is available? 

Do not lose hope! Read our article Who is there to support training organisations and what RTO representatives should know.

The VET industry has some serious concerns regarding the competency of ASQA’s officers and auditors. We would like to look into this with some facts, records and figures. 

Qualified auditors with Senior VET Experience – are they qualified enough?

Unfortunately, the regulatory body has moved away from recruiting officers with a background in the education sector or even relevant industry experience to be able to effectively audit training organisations. Now questions have to be asked with regards to how auditors are selected and engaged by ASQA. 

ASQA hires Lead Regulatory Officers to lead and supervise audit teams; make recommendations about RTOs compliance; make recommendations for the Commissioners but, as shown below, successful applicants are not required to hold the legislated mandatory qualifications.

If applicants do not hold the legislated qualifications at the time of engagement what process does ASQA use to put their regulatory staff through their qualifications? 

According to AQF guidelines, Certificate IV and Diploma require a minimum of 1.5 years/1800 hours, up to 4 years in total/4800 hours to complete. So, does that mean that ASQA staff receive 4 years of training before they are in a position to recommend the shut down of Australian companies? Who issues the qualifications? Who are the RTOs?

When Mark Paterson, AO, commented on the first-ever strategic review as Chief Commissioner, “a review of issues relating to unduly short training”, did anyone review ASQA’s own recruitment practices or compliance with the Australian Qualifications Framework (AQF) and other relevant guidelines? 

Auditor interpretation and decision consistency: Forget nationally consistent decisions, two auditors cannot reach the same decisions  

No two auditors think or act the same way. We were shocked to see how inconsistent their findings and views are on the same clause and regulatory standard. If these auditors have such a difference in opinions then how can a regulatory body comply to its core values and source or even its existence? 

ASQA was established on the following grounds under the National Vocational Education and Training Regulator Act 2011: 

The Section 2A Objects of the Act: 

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.

A common misconception in the industry is that ASQA exists to protect and promote quality in the sector.  However, the act clearly outlines, it exists to protect and enhance quality, it exists to provide national consistency in its decisions, it exists to encourage and promote a VET system that provides quality, flexibility and innovation. 

We believe all decisions where two auditors have not reached the same conclusion or outcome should be considered as “null and void”. These decisions should not have any legal or ethical standing. 

Not having nationally consistent decisions – Are not these clear signs of the incompetence of the regulatory officers and auditors? 

If two auditors cannot agree on something and provide completely contradictory statements and judgements, then how can this current regulatory body provide for national consistency in the regulation of vocational education and training (VET); and 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. 

How many of these requirements is ASQA currently meeting? 

Is ASQA able to provide national consistency in the regulation of vocational education and training (VET) even after eight years of registration? 

Is ASQA able to regulate VET using a standards‑based quality framework; and risk assessments? 

Is ASQA able to protect and enhance (i) quality, flexibility and innovation in VET; and (ii)  Australia’s reputation for VET nationally and internationally?

Is ASQA able 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?

Is ASQA able to protect students undertaking, or proposing to undertake, Australian VET by ensuring the provision of quality VET? 

Is ASQA able to facilitate access to accurate information relating to the quality of VET?  

Please note this situation becomes immensely interesting even when the same ASQA auditor gives two different judgements on the same resources within a period of a few months. 

Errors of gigantic portions 

• Is ASQA allowing, encouraging and promoting its officers to make errors in so called “good faith”? 

• Where are the performance reviews of the officers working in the vocational education and training sector? 

• Why has no disciplinary action been taken with officers misusing their position and power? 

ASQA Audits  

1. What kind of rigour is used to review the documents and information provided to ASQA during the audits? Who checks the documents during a desk audit? Are these auditors or ASQA officers making decisions? What checklists or criteria do they check the information against?

2. There was a case where ASQA officers could not read the name of the RTO staff members in the ASQA auditor’s report and internal documents and refused an RTO application. What actions have been taken to ensure this doesn’t happen again? 

3. How can ASQA review the documents of an organisation, confirm that they are compliant in writing, approve them for providing training and assessment and then six months later (after the initial audit) shut them down or use sanctions to disadvantage the RTO? 

If the training package and the qualifications have not changed and the training and assessment material was previously audited and deemed compliant, how can this be possible? Was the initial assessment of the RTOs training and assessment material not properly conducted? If an ASQA representative makes a mistake at the initial audit then who should be held responsible? If ASQA made mistakes at the following audits then where is the consistency in the system? 

ASQA Audit Practices 

1. Why does ASQA not allow audits to be recorded? If audits are conducted in a compliant professional manner then why is this a problem? 

2. Why are comments outside of the scope of audit allowed to be made during audits?

3. How is ASQA ensuring procedural fairness and transparency in its decisions?

4. What risk management approach is ASQA using? After eight years, it appears that the core issues of the VET training system have still not been resolved. 

5. Why there is no consistency, parameters and timelines in terms of when training representatives are audited and provided with audit reports? 

6. Are ASQA audit practices auditor-centred, rather than system-centred? Are auditors auditing outside the regulatory framework and guidelines? 

Conflict of Interest 

1. How can an auditor, representing a Government body not a private regulatory body, be allowed to work in an organisation they have been auditing after only a six-month gap? 

2. How can consultants be allowed to become auditors and then again go back to work as consultants in the sector and then again be engaged by ASQA? 

3. If there are “fit and proper person requirements” for training representatives and high managerial agents, what requirements are applicable for ASQA officers and auditors? A number of these officers have been part of training organisations, either as consultants or employees, that have been closed down and had critical non-compliances and unfavourable compliance outcomes. 

4. Why are government officers allowed to provide consultancy services to RTOs? When and where do we draw the line for a conflict of interest?

Audit Reporting 

1.  Why are all audit reports not available on ASQA’s website?