Andrew Laming (Bowman, Liberal Party) Share this | Hansard source

I rise after a nationwide investigation into the performance of ASQA's monitoring and regulating of the training sector. They regulate TAFE and small training organisations all around the country, and all but two states have handed over their powers to ASQA. This government, and I assume the entire parliament, would like to see a flourishing diverse and high-quality training system in Australia, one where brand Australia is known as a great place to educate, train and employ. In that role, ASQA has an incredibly important role—supporting training across a geographically diverse country like Australia, dealing with our significant international student caseload, which has its own unique requirements, and, of course, helping our employed citizens of tomorrow acquire, in a relatively short time frame, the skills that we know are going to be needed in the future. With those changing requirements, we need an agile sector. We need people after a career of service to the nation to then say, 'I will serve by being a trainer.' And we need to have an enhanced system that is obviously monitored and kept at high quality. ASQA began in 2011 and has been responsible for just over 2,200 organisations in this country. But, on my investigation in every state and territory, talking to remote training providers in Aboriginal communities and speaking in the outer suburbs of Sydney, where the hope of a career or a future can be dashed so easily by the absence of a place where one can train somewhere in your neighbourhood for a job one can dream of, I know that for these trainers and providers there are enormous concerns about the shortcomings of ASQA.

I want to just start with a quote. It's a quote from ASQA. By ASQUA's estimation you are liable for the possible maximum penalty of 600 units for each of the 89 VET statements of attainment alleged to be issued outside its scope of registration. The total maximum penalty on that calculation—sharpen your pencil—is $11,214,000 were ASQA to refer this matter for civil penalty proceedings in the Federal Court. However, your client may be able to dispense with the possibility of facing that heavy penalty if it were to agree to pay one-tenth of the maximum penalty pursuant to an infringement notice. You'll be very relieved to know, Member for Bennelong, that would be a liability amount of just $1,121,400. 'If your client is amenable to paying that reduced that sum, I advise without instruction that ASQA may be amenable to conciliated on the bases that the cancellation decision is set aside and a conditional grant of registration is reinstated. Please advise on your client's position.'

Now, no-one would want to see a dodgy provider getting away with blue murder, and we've seen plenty of that in 2013, 2014 and 2015. Every provider I spoke to said that, if there were to be another provider engaged in fraud, mismanagement and irresponsible training practises, of course they should be driven from the sector. That is the common clarion call from every group I've spoken to. But they don't appear to be the stories that I have before me. Some of the highest thinkers in this relevant area of law in the three major cities all have the same view as barristers representing many of these RTOs just hoping to survive the ASQA audit. It appears to me ASQA is increasingly using the AAT as a vehicle for extinguishing RTOs simply by legal cost, reputational damage and delay.

One would hope that all authorities with the difficult jobs ASQA has would demonstrate a form of model litigant conduct, meaning that it would not deliberately engage in legal tactics designed to damage the respondent rather than just arriving at some form of clarity. But, increasingly, that is not how RTOs feel. From the highest levels, those who monitor the sector say it has become increasingly difficult to establish any form of rapport with ASQA. This stands in complete contrast to RTO relationships with New Zealand's regulator and Canada's regulator. They give us an example of the two-phased approach of both regulation and capacity building that need to be done by regulator concurrently at the appropriate time. By capacity building, I don't mean putting on a forum in a capital city once every few months, where you simply tell people what you're doing but don't answer their questions. ASQA, I'm told, give the impression it is willing to wield the big stick and keep pressing the same points. Its time management is terrible. What should be a day's audit stretches out to three.

An Indigenous community organisation I have been talking to with a flawless record in Western Australia audited for the first time by ASQA in April was sent the bill for 25 audit hours and ordered to pay $22,000 for the privilege of being shut down—for a single audit visit! This is money that isn't delivered to the front-line for training young Aboriginal youth. No-one wants a bad trainer out there but one would want to know why a RTO could be winning a state award for the highest quality of training and then be told to walk the plank by ASQA a few months following. There is no consistency if the auditors themselves can visit an RTO, raise minor administrivia then leave the building and, within a few months, the RTO gets a letter explaining ASQA intends to shut it down. There is no resemblance to the initial audit visit.

That lack of consistency between auditors must be of enormous concern. Remember TAFE is under the same regulations. You hope that TAFE plays by those same rules. But TAFE is a big gorilla; it can afford cop a few rough audit reports because it can just shuffle things between units, close a module down and shift students across to something else. A small RTO, a tailored niche RTO which is the only training provider to, say, main roads can't do that. Staff working on building better roads for Victoria don't want to travel an hour and a half to TAFE and that's why you have a flourishing private RTO sector. It is why state governments tender to private RTOs. Snuffing out an RTO by simply telling it, 'If you want to take on this decision, there's the door to AAT, and lawyer up,' is not the conduct of a regulator that is building confidence in our sector.

This is not just a domestic issue; this is about brand Australia. We sit within a peloton of developed English-speaking nations that offer training. We don't have to do much to molest and damage our training sector for those students to go to Canada. They're quite happy to and capable of getting a Canadian degree and, in turn, form relationships with Canada and be added to their skilled workforce at Australia's expense. It's not in our interest to nickel and dime every RTO on minutia. Of course RTOs will run into problems. Name me a GPS school or a top-tier university that hasn't, at some time, fallen short on administrative requirements. They need to be given a helping hand and that's what we set this regulator up to do.

There is such inconsistency now that these experiences are completely unpredictable. We find now that nearly half all of these matters that ASQA gives no alternative and no internal independent review are simply forwarded to AAT. Many of these don't stand up at AAT at all. I would expect that the regulator, acting as a model litigant, confident in the cases they send off to Federal Court, should win most of them. The fact that they win potentially less than half of them indicates that they're sending off to the AAT more for the purposes of legal expense and reputational damage and delay. As long as an RTO is suspended there are no more enrolments. The agents put a line through the RTO's name. The damage done is enormous. I just want to make sure that the damage is proportional to the issues found by that auditor when they visited. I hate to think that this kind of thing could happen to an RTO when there hasn't even been an auditor visit the premises, but it does happen purely on desktop and paperwork checks.

This aggressive and adversarial conduct is an enormous concern to me. We respect the absolute independence of these regulators and we wish them well in their job, but I'm absolutely compelled to report what I hear from the RTOs as well. I'm not in a position to substantiate a lot of these matters, and that's why I don't go into absolute specifics. I respect that in many cases ASQA does an incredibly hard job, but I just ask for a small Indigenous RTO working in remote Australia to be given a second hearing and to have a second visit from the auditor after they have been given a chance to address some of these concerns. But this broadly overreaching and focus on overcompliance has now almost gained ASQA an affectionate term for an absolute focus on administrative trivia.

No-one deny the critical breaches that should stop an RTO immediately, but too often we're simply seeing them referred to schedules and items and not given any suggestion on how to meet them. ASQA is not meeting halfway to have a discussion about the level of administrative performance they want to see from RTOs. No—what they say is, 'We are a regulator, not a consultant.' So they have bred a new industry of former ASQA auditors who leave only to become consultants to help RTOs get through the very ASQA process they were once part of. They start their advice with, 'I can't guarantee you that we can even succeed in this process, because we can't even tell you how ASQA will respond to our own efforts to heal the situation and respond to their concerns.'

Example: working with RTOs that encountered issues like non-compliant marketing material, because they claimed on the website that they're centrally located and close to transport. ASQA took issue with that, saying they weren't near a train station. I don't want to hear that the colour of a logo was different on the website than it is on their letterhead and may lead to some confusion. I respect absolutely that ASQA should be able to reach out to students and ask for feedback on satisfaction, knowing that an RTO can't possibly keep every student happy if they're in the business of passing and failing, but, with respect, I think we need to make sure that we don't have a regulator that actively goes and cultivates student complaints for the mere purpose of further frustrating and creating additional legal thickets around that organisation being able to continue to do its job.

There have been RTOs that have had issues with trainer verification—trainers working in the industry who have been there for a lifetime but didn't have sufficient content on their professional develop log and therefore were considered unsuitable to be a trainer. I appreciate that ASQA says there they're zeroing in on the bad guys, but there's a big difference between risk and poor quality. We want risk addressed in many cases if it's affecting student quality, but there's a significant risk in simply providing training services across a diverse nation like Australia in multiple states under different arrangements and various distances from metro areas. The second rectification period should be available, and if isn't in the legislation, in the NVETR Act, we should look at this very matter.

There's provision for independent internal review, but only for decisions made by a delegate. Increasingly, where decisions are wrapped up with most of the commissioners involved in the decision, it's impossible to get any form of independent internal review under the current design of the legislation. That's just keeping the AAT busy. After migration, which occupies the AAT probably more than it should, I don't want to see ASQA as number two. I don't want to see our training sector sending more work to the AAT than the rest of the entire private economy of this nation. That's not where it should be heading. What I'm worried about is a cultural change over time. Two or three years ago the sense was that if a small RTO applied for a stay, it was more than likely going to be granted. Stays play a very important legal role in allowing the respondent the time to assemble their case. But increasingly it looks like when ASQA feels that more damage is created by giving one less time, less time is what you get. Where it suits ASQA to delay the process because of the reputational damage and cost, it appears that's the decision that the RTO cops. I'm disturbed that virtually every application for a stay may now be refused for no good reason that I can see. A stay is very important legal option that should be available and should be offered by a model litigant—in this case, ASQA.

The default position between cancellation and suspension is also very important. What typically happens, as described by RTOs, is that the audit occurs, the audit panel returns and a letter comes back bearing no relationship to the vibe that was experienced when the auditor visited. A lot of the stuff was minor, so they asked, 'Can we see your indemnity, please?' They show that their indemnity is up to date and they walk out satisfied. But then a letter comes back saying, 'You didn't give us your detailed indemnity document for us to read; therefore, you are noncompliant because you provided us with nothing.' But they'd provided the auditor for what they asked for and the auditor walked out happy. We could go through too many examples.

I'm worried about Australia's reputation as a place for high-quality training, as ASQA is, but I suspect at the moment the culture has shifted too far in one direction. I am worried about damaged reputations. I'm worried about families putting all of their livelihood and the resources of extended family to build an RTO to meet specific niche needs in our community that TAFE can't meet. I don't expect kids from Punchbowl to sit on a train for 50 minutes to go to TAFE if there's an RTO solution in the suburb that's available. That's being closed down. It's a privilege to be a regulator. Those regulators are well paid. They're generously resourced. It's not about the number of RTOs in this country; it's about their quality. I think if there are quality RTOs seriously wanting to be better, ASQA plays a role in helping that to occur.

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