Lapsing provisions - Episode 1 podcast transcript

Podcast published: 30 October 2024

Kai Rottmann: Welcome to ASQAcast, ASQA’s official podcast and your avenue to being informed on all things ASQA. It’s Kai Rottmann here, and I've been looking forward to this, our first episode on lapsing provisions. Before I start, here's a little bit about me. I'm the director of Sector Education and Engagement and I've been with ASQA for 3 years now. I've met many of you over the years speaking at conferences and a consistent theme in my engagement with the sector has been for us to dive into further detail on a number of topics. So today I'm excited to be talking in detail about lapsing provisions. We will cover the background, who is impacted, what you need to know and what you should do. Now who better to explain the ins and outs of all things lapsing, and the implications, than Jacqui Pellow, our director of Registration Management and Assessment. Jacqui, great to have you on board for our first ASQAcast episode. 

Jacqui Pellow: Thanks for having me, Kai. I really appreciate it. 

Kai Rottmann: Outstanding. Now, before we start talking about all things lapsing, are you able to tell us a little bit more about your role and how long you've been at ASQA for? 

Jacqui Pellow: Yeah, of course. So, I've been at ASQA for about 8 years now. I started out working in ASQA’s Investigations team. I've also worked in the Legal team. I've done some reform work implementing the Rapid Review recommendations. I've been the Director of a Regulatory Policy team, our Market Entry team, and now I'm currently the Director of our Registration Management and Assessment team. So, my team currently is responsible for managing the registration of providers. So, the easiest way to explain that is all applications that a provider makes, so renewal applications, change of scope applications, notifications for material changes, all come to my team for assessment. The exception is we don't deal with the applications for initial registration, and we don't conduct performance assessments, audits or investigations in my team.

Kai Rottmann: Well, we definitely have the right person for this topic. Now, this episode on lapsing has come about as we've received a lot of interest from the sector around this. What exactly are we talking about when we say lapsing provisions?

Jacqui Pellow: Yeah Kai, so the government introduced some new provisions into the NVR Act, so the National Vocational Education and Training Regulator Act earlier this year, that essentially mean that if a provider doesn't deliver any VET, any vocational education and training, for a period of 12 months or more, then their registration will end. So, this provision occurs automatically. ASQA does not make any decisions to end a provider's registration, and therefore we actually don't have any discretion about whether the registration ends or not.

Kai Rottmann: Ok, so these are new provisions, right?

Jacqui Pellow: Yeah, that's right. So, they were agreed by Parliament in March this year and the legislation commenced the 1st of July. These provisions are actually a new concept in the VET sector in Australia.

Kai Rottmann: Ok. So, can you tell us a little bit more about why they were introduced and what government was trying to achieve by introducing them?

Jacqui Pellow: Yeah, so these provisions are actually the implementation of one of the recommendations of the Braithwaite Review. That review was called ‘All eyes on quality: Review of the National Vocational Education and Training Regulator Act’ and it was released back in 2018. So, while we know that the vast majority of providers do the right thing, there are actually some providers who use their business as a veil of legitimacy for fraudulent activity. 

These provisions are designed to remove dormant providers from the sector and this has a number of benefits. So, it allows students to be able to more easily find a provider who they can actually enrol with. It allows ASQA to concentrate our regulatory efforts on those providers delivering training and assessment and it removes providers who might be using the registration for other reasons. We also know that if a provider does not deliver training for a substantial period of time, they don't keep their premises, they don't maintain trainers and assessors on staff and they don't maintain the industry currency of their assessment tools. Ending a provider's registration means that if a provider does want to re-enter the market, ASQA can ensure that they are appropriately resourced to recommence delivery at that time.

Kai Rottmann: Ok. So Jackie, you mentioned earlier that ASQA does not make a decision to lapse a provider's registration. What does this mean and what are the implications of that?

Jacqui Pellow: Yeah Kai, so what this means is that a provider's registration lapses automatically. So, this occurs basically as soon as a provider has not had or not delivered any training or assessment for a period of 12 months, their registration ends whether or not ASQA has notified the provider or not. Now, certainly that as soon as we are aware that a provider has met the requirements for this provision to come into play, we will let them know and in fact we're actually trying to contact providers before their registration would lapse. As soon as we know that a provider has had a period of time without delivery, we're getting in contact with those providers, letting them know about the provisions and what steps they might want to take. But the big thing to remember here is that because ASQA is not making a decision to lapse a provider's registration, there are no mechanisms to appeal the fact that the registration has lapsed.

Kai Rottmann: Oh ok, great. So earlier you said that if your registration is lapsed, it ends. What does this mean? Is it the same as having your registration cancelled?

Jacqui Pellow: So, the short answer – no, not the same Kai. When a provider's registration ends for any reason, it means that a provider can't deliver any VET. But the difference between a provider's registration lapsing and a provider's registration being cancelled is that if a provider's registration lapses, they can actually reapply for registration at any point in time, which is different from if a provider's registration is cancelled. There are sections in our legislation that actually prohibit those particular providers from reapplying for registration for 2 years. One of the other key differences is that you can actually appeal a cancellation decision. A cancellation decision is a sanction and generally occurs due to non-compliance with regulatory obligations.

Kai Rottmann: Ok, wonderful. So, you've just explained that this is not the same as a cancellation but I guess there are a couple of questions providers may be wondering. Firstly, what if they also registered under the ESOS Act?

Jacqui Pellow: Yeah, that's a really good question Kai. So, for a provider to deliver VET to overseas students under the ESOS Act, they must first have registration to deliver VET under the NVR Act. Once registration ends under the NVR Act, a provider can no longer deliver VET to anyone, including overseas students. So as a result, any registration to deliver VET under the ESOS Act will end if a provider's registration to deliver VET under the NVR Act ends. It is important to note though, we know that providers can be registered to deliver at various different courses under the ESOS Act. So, including VET courses but we also have our ELICOS courses, our English language courses or our higher education courses that are delivered through universities. If a provider's registration to deliver VET courses ends under the ESOS Act, it won't impact the registration to deliver any of those other types of courses.

Kai Rottmann: Ok. Thanks, Jackie. That's actually really important to know. I think providers will also be wondering, will this be actually held against me if I reapply for registration or am involved in another provider in the future? Can you expand on that please?

Jacqui Pellow: Yeah. So, I think I mentioned earlier that the lapsing of a provider's registration is not a sanction and it does not occur because the provider has been non-compliant or not met it's regulatory obligations and these are obviously things that ASQA would take into account if it was making a decision for registration. So, that obviously doesn't apply in this situation. I also mentioned earlier that there is nothing preventing a provider from reapplying for registration if they've previously had the registration lapse.

But what is important to remember here is that when a provider is applying for registration, they need to be able to demonstrate a commitment to delivering quality VET. So, when we're assessing those types of applications, ASQA would be wanting to see evidence that the provider does intend to deliver.
The other thing that I would encourage is that providers can actually voluntarily apply to withdraw their registration if they know that they will have a substantial period without delivering any training or assessment. We have actually already seen some providers do this Kai and it has a number of benefits in that, the end date of a provider's registration is known in advance and the registration ends in a really managed way. There are no uncertainties, no surprises, and everybody knows what's going on.

Kai Rottmann: Ok, great. Ok, so now we know what the provisions are, but surely there are some times when it's unavoidable that the provider doesn't deliver any training for 12 months, for example, we just had COVID pandemic and we've seen a lot of buildings damaged in floods and fires in recent times. What happens here?

Jacqui Pellow: Yeah, absolutely Kai. We have seen this on a number of occasions. We also know that providers will often deliver their courses on a calendar year. So, if something happens, that means that they do need to stop delivering for a while, it's unlikely that they're going to start delivering in the middle of a calendar year, which can mean in some situations that there are periods of longer than 12 months without delivery. We also know that rebuilding can obviously take some time. So, the legislation was drafted with this in mind. 

So earlier I mentioned a provider, their registration would lapse after a period of 12 months without delivery. This 12-month period is known as the ‘measurement period’ and the legislation actually includes a provision that if a provider thinks that it will have a period of more than 12 months without delivery, it can apply to ASQA for that measurement period to be extended. That measurement period can be extended for up to 12 months, so that means that a provider, upon application and approval by ASQA, can have a period of up to 24 months or 2 years without delivery before their registration would lapse.

Kai Rottmann: Wonderful. Jackie, this has been really great and a real pleasure to have you on board for our first episode to discuss all things lapsing.

Jacqui Pellow: Thanks Kai. I'm really excited to have been here today.

Kai Rottmann: Now I know you have heaps more to say on this topic and I look forward to you returning for episode 2 on ‘how do I make an application to extend my measurement period?’. We're also grateful to have you back for episode 3 to close this series on lapsing and to discuss questions from the sector. Well, that just about wraps it up for today on ASQAcast. Stay tuned for our next episodes as we further educate the sector on a number of topics. You can find our podcasts on our website by heading to asqa.gov.au and searching podcasts. If you have any questions you would like to ask Jacqui for episode 3 or if you have some topics of interest that you would like to hear more about, please send us an e-mail at podcasts@asqa.gov.au. We look forward to you joining us next time on ASQAcast. Bye for now.