Legislative changes

A new legislative instrument will replace the existing data provision requirements from 1 March 2021. The new instrument simplifies the requirements for providers by :

• establishing reporting obligations for permanent VET delivery sites and campuses
• clarifying the type and format of information which must be provided to ASQA
• clarifying when changes to a provider’s business must be notified to ASQA
• clarifying information requirements when notifying ASQA of a third party arrangement
• clarifying that RTOs must inform ASQA of changes resulting in non-compliance with Financial Viability Risk Assessment Requirements and Fit and Proper Person Requirements.

Examples of changes to the National Vocational Education and Training Regulator Regulations 2011 (the Regulations) which affect ASQA include:

• use of infringement notices as an alternative to civil penalties for RTOs who, when directed to by ASQA, fail to cancel VET qualifications and statements of attainment
• use of infringement notices as an alternative to civil penalties for RTOs who issue VET qualifications and statements of attainment to students who have not obtained a unique student identifier (USI), unless an exemption applies under the Student Identifiers Act 2014
• requiring ASQA to add expanded details about an RTO to the National Register (i.e. ABN and website)
• requiring ASQA to publish historical regulatory decisions of an RTO on the National Register

Further changes to the Regulations, which will come into effect from 1 March 2021, require ASQA to publish adverse regulatory decisions on the National Register (www.training.gov.au) at the time of decision.

Examples of changes to the NVR Act that affect providers include:

• demonstrating a commitment and capability to delivering quality VET
• informing ASQA if an event is likely to occur that would significantly affect the RTO’s ability to comply with the VET Quality Framework
• ensuring third party arrangements with non-RTOs are undertaken with a written agreement in place
• providing information or VET student records to ASQA when an RTO closes, or on ASQA’s request, in a particular electronic or other specific format
• applying for internal review (reconsideration) where available, before seeking an external review through the Administrative Review Tribunal.

It is important that we can understand and interpret information provided by RTOs, to assist us in carrying out our regulatory functions and making regulatory decisions.

RTOs are required to adhere to any request for information made by ASQA, which may also specify the manner and/or format in which the information is to be provided. For example, ASQA may request information is provided via email or in a particular electronic file format.

We acknowledge that RTOs may not always be capable of providing information as specified. For example, the RTO may not possess the information ASQA has requested. In these circumstances RTOs must advise ASQA of the reasons they are unable to comply with the request.

ASQA may also make and retain copies of documents supplied by an RTO. If ASQA retains a document or extract, RTOs are entitled to a certified copy of the retained document or extract.

We use information provided by RTOs to ensure their publicly available details are accurate and current. ASQA has an obligation to share and publish this information on the National Register (www.training.gov.au), and RTOs are required to inform ASQA of any changes to their details as soon as practicable so that publicly available information is accurate.

Changes to the data provision requirements effective from 1 March 2021 further define what information must be provided to ASQA and are aimed at improving the clarity and technical accuracy of information to reduce duplication and assist RTOs in meeting their existing obligations.

While many of these changes are minor, the data provision pequirements now require that providers keep ASQA up-to-date about the physical address of any site or campus from which VET courses are delivered on a permanent basis. This includes any site an RTO owns or leases for the purpose of delivering VET, or any premises used by an agent of the RTO for the purposes of delivering VET. ASQA uses this information to ensure details on the National Register (training.gov.au) are accurate and up-to-date. This information is critical to supporting students to make informed decisions when selecting a training provider.

We have developed guidance to assist you to determine when location details must be reported under the new data provision requirements.

When a significant change of circumstances (known as a material change) occurs, the NVR Act has always required an RTO to notify ASQA of that change in writing. The data provision requirements now clarify what changes in circumstance must be notified.

Under these changes, effective 1 March 2021, the data provision requirements now specify that RTOs must inform ASQA of changes resulting in non-compliance with either the Financial Viability Risk Assessment Requirements or Fit and Proper Person Requirements. RTOs must also notify ASQA if an event occurs which may affect their ability to comply with the VET Quality Framework and of substantial changes to operations.

Prior to 1 July 2020, RTOs were only required to notify ASQA after a significant event or substantial change occurred. RTOs are now required to inform ASQA if an event that would significantly affect their ability to comply with the VET Quality Framework is likely to occur, and if there are likely to be substantial changes to the operations of their organisation.

For example, an RTO may find their principal place of business or delivery becomes unavailable and they are not able to readily access alternative arrangements. As a consequence, the RTO may not be able to comply with the resource requirements of the Standards or the training package, and there will likely be substantial changes to how the RTO operates. In this case, ASQA must be notified of the change as soon as the RTO becomes aware of the likelihood that they may no longer be able to comply with the VET framework.

As ASQA moves towards encouraging a culture of self-assurance to support quality training and student outcomes, there are a number of ways RTOs can demonstrate their commitment and capability in delivering quality VET.

Firstly, they can ensure their governance and systems are working effectively to provide quality training outcomes. In supporting this, ASQA will continue working with the sector to build capacity for self-assurance and co-design new regulatory tools that support self-assessment.

In the context of regulatory activity, RTOs can demonstrate their commitment and capability through their response to audit findings of non-compliance with the Standards for RTOs 2015 (the Standards), measured by the RTOs’ ability to remedy identified non-compliance in a sustained and systemic way. In supporting this, ASQA will provide more opportunities for RTOs to remedy non-compliance, and will consult with the sector in the development of our approach to undertakings to remedy.

Demonstrating a commitment and capability for delivering quality VET should be reflected through an RTO’s ongoing compliance with the Standards as a core part of its business – not just during an audit process.

Many RTOs operate and deliver courses under a third party arrangement. These arrangements allow an RTO to engage the services of other RTOs and non-RTOs to provide training on their behalf or to recruit learners for the RTO.

RTOs that use third parties to market or recruit into courses, or to provide training and assessment, are responsible for ensuring the third party operates in accordance with the Standards. The Standards require these arrangements are managed via a written agreement, and that ASQA is notified of the arrangement.

From 1 March 2021, the data provision requirements describe the type of information an RTO must provide ASQA where they enter into a third party arrangement to deliver training and assessment.

The NVR Act has always enabled ASQA to direct an RTO to cancel a VET qualification or statement of attainment which has been issued to a student. This response can be undertaken in circumstances where we reasonably believe the qualification or statement should not have been issued. These actions are rare but could include, for example, where adequate assessment had not been provided, resulting in the student not having the skills and competencies described in the training product. This type of situation may also create a risk to the health and safety of the community.

If ASQA directs an RTO to cancel a testamur, and the RTO does not do so, ASQA can cancel that VET qualification or statement of attainment. In this situation, the RTO may also be subject to a civil penalty. Changes to the Regulations now allow ASQA to issue an infringement notice as an alternative to a civil penalty.

ASQA can also cancel a VET qualification or statement of attainment without first directing the RTO to do so. This action can be used in situations where we believe the RTO would not comply with the direction.

RTOs will continue to have the opportunity to seek a review of any decision made by ASQA to cancel a VET qualification or statement of attainment. Likewise, students will be informed of any proposed cancellation and we will consider any information they provide before making a final decision.

RTOs must also ensure that students hold a USI, unless the student is specifically exempted under the Student Identifiers Act 2014. ASQA has published guidance for RTOs to explain their participation in the scheme in the Users’ guide to the Standards. More information on the USI is also available for training providers and students on the USI website. If an RTO issues a VET qualification or statement of attainment to an individual and that person has not been assigned a USI, in addition to being not compliant with the Standards for RTOs, the RTO may be subject to a civil penalty. Changes to the Regulations allow ASQA to issue an infringement notice as an alternative to a civil penalty. This change supports a stronger student identifiers scheme and reassures the public that VET qualifications and statements issued with a USI are authentic.

The option to issue an infringement notice rather than begin civil penalty proceedings allows ASQA to quickly address breaches that are relatively minor in nature, by enabling RTOs to make a lesser payment through that notice, rather than face civil penalty proceedings. This also improves ASQA’s efficiency, ensuring time and resources are not wasted on unnecessary civil proceedings in court.

The way RTOs manage their records, and particularly their student records, has evolved as technology has made records management practices more reliable and secure. Electronic records require less physical space and enable RTOs to easily track progression or past student outcomes.

For ASQA and other stakeholders in the sector, electronic records improve the effectiveness of regulatory and other government practices and processes. Access to information by electronic methods ensures the data and information that we hold is accurate.

While RTOs have always been required to provide VET student records to ASQA, either when requested or on cancellation, we can now instruct that the records be provided in a specified electronic format.

As yet, ASQA has not specified a standard format for student records. In the coming months, we will work with the sector to determine the format that best suits electronic student records management for both RTOs and ASQA.

Consistent with ASQA’s strengthened focus on self-assurance, we encourage RTOs to engage with us and remedy any identified non-compliance during a regulatory process. If, however, we make a decision that an RTO doesn’t agree with, the RTO can seek a review of that decision. Most decisions we make are eligible for internal review and, where this is the case, RTOs must apply to us for internal review before seeking an external review.

Applying for an internal review (a reconsideration) is cost-effective for RTOs and can achieve a quicker resolution of issues. By working directly with ASQA, instead of via an external review (Administrative Review Tribunal) process, ASQA and the RTO can engage more often, can request and discuss information, and can retain control over timeframes. ASQA can also stay a decision during the reconsideration process, meaning the decision is not in force while under review. This measure provides flexibility to support training delivery and ensure students’ training is not interrupted during the review process.

As is currently the case, if a resolution cannot be achieved through an internal review, RTOs can apply to the Administrative Review Tribunal for an external review of ASQA’s decision.

These provisions clarify ASQA’s ability to set the date of effect for decisions to non-renewal or cancellation decisions, and the period of any suspension of registration decision.

Providing ASQA with discretion in this area may minimise any adverse impacts on students, by allowing existing students to complete their training, or arrange to transfer to another provider. It also may provide an RTO with more time to:

• commence an appeal of the decision
• apply to stay the effect of the decision pending the determination of an appeal.

ASQA can now decide the length of time a condition is placed on an RTO’s registration (the condition period). This can be for either a specified time or for a period determined by a notice. For example, a condition period may be imposed until such time as the RTO takes a particular action. The provisions also enable ASQA to remove conditions placed on an RTO’s registration after that action is completed. For example, this may be when ASQA is subsequently satisfied that the condition is no longer required.

A key outcome of ASQA’s Reforms and the Rapid Review is to ensure ASQA’s regulatory actions are transparent, by demonstrating that appropriate, consistent and proportionate decisions are made. To support this increased transparency, ASQA must meet new obligations in relation to audit reports.

ASQA will work with stakeholders to identify a new approach to audit reports, which will include making audit reports publicly available. Publicly available reports will give stakeholders a greater understanding of the audit process and the nature of our audit findings.

To ensure that publicly released audit reports are consistent and fit for purpose, publication will proceed only once the format and contents have been set out in a legislative instrument made by the Minister. The instrument will be known as the ‘audit report rules’.

Audit reports will not be publicly released in their current form, and publication of audit reports will not commence until further consultation is undertaken with the sector.

This consultation will inform the preparation of the audit report rules and will consider a range of issues, including how to ensure the publication of audit reports supports an informed understanding of provider performance.

When an RTO closes and ceases operating, it is still subject to certain obligations under the NVR Act. These obligations include that it must:

• return its certificate of registration to ASQA
• pay any outstanding fees to ASQA
• comply with all data reporting requirements
• provide ASQA with all student records for any VET student that has ever been enrolled with the RTO.

The obligation to provide the VET student records to ASQA is the responsibility of an executive officer or high managerial agent of the RTO, with control of and access to these records. This could be the chief executive officer, operations manager, or director of the organisation. This requirement ensures that students remain supported—even after an RTO ceases to operate—and can obtain access to records of any training they have completed.

While ASQA already requires RTOs to provide these records in electronic format, over the coming months, we will work with the sector to determine a standardised format which reflects the information technology needs of providers.

In common with the new provisions relating to the date of effect for RTO registration decisions, ASQA can:

• set the date of effect for VET accredited course renewal decisions, to provide clarity in relation to when the renewal takes effect
• determine the period for which a condition is placed on a VET accredited course
• remove conditions placed on VET accredited courses
• issue general directions regarding the way in which VET accredited courses are to comply with the Standards for VET Accredited Courses 2012 and the Australian Qualifications Framework.

These measures will support greater consistency across the regulatory framework.

Currently, ASQA can cancel VET qualifications and statements of attainment that have been issued to students, and these powers are supported by prescriptive notification requirements. While such actions are rare, ASQA is now able to cancel qualifications and statements of attainment without first directing an RTO to do so, in situations where we reasonably believe that the RTO would not comply with our direction, or in the case of a former RTO. All requirements to notify the individuals concerned and provide them with an opportunity to respond prior to the cancellation remain, and a decision to cancel a qualification also remains a reviewable decision.

Aligned with similar powers of other regulators, ASQA can accept an enforceable undertaking for all purposes under the NVR Act. This is an undertaking given to us by a party—such as an RTO or a Chief Executive Officer—that has not followed the requirements of the NVR Act, but who agrees to remedy the issue and take improvement actions to prevent the issue from occurring again. As ASQA develops our compliance and remediation practices, we will work with the sector to determine how to best use enforceable undertakings as a regulatory tool.

Applying for an internal review (a reconsideration) is cost-effective for RTOs and can achieve a quicker resolution of issues. By working with ASQA, instead of via an external review process, ASQA and the RTO can engage more often, can request and discuss information, and can retain control over timeframes. ASQA can also stay a decision during the reconsideration process, meaning the decision is not in force while under review. ASQA may also set conditions on the stay determination. This measure provides flexibility to support training delivery so students’ training is not interrupted during the review process.

To ensure prospective and current students and other stakeholders have access to current and accurate information, and to enable these consumers to make informed decisions about an RTO, ASQA is required to publish certain key information on the National Register (www.training.gov.au). These requirements have now been expanded to ensure transparency of information, and require the publication of an organisation’s:

• name and business name
• physical addresses and permanent delivery locations
• website address
• Australian Business Number (ABN)
• Chief Executive Officer contact details
• contact details for public enquiries and to contact the organisation about its registration as an RTO, and
• information about an RTO’s renewal of registration or a VET accredited course owner’s renewal of course registration.

Where an RTO ceases to operate, it is required to provide ASQA with an electronic copy of its VET student records. To ensure students have access to accurate records, ASQA can provide relevant data to the National Centre for Vocational Education Research (NCVER), without having to notify every student about this communication. This ensures a student’s authenticated VET transcript can be populated with accurate training information by NCVER.

ASQA can authorise NCVER to disclose information on its behalf. NCVER may disclose this information if it would reasonably inform a person’s choice to participate in VET, would encourage improvement in the quality of VET, or encourage compliance. This will help to improve the flow of information between stakeholders in the sector.

ASQA can share also personal information with tuition assurance scheme operators without having to notify every student about this communication. This enables ASQA and tuition assurance operators to assist students in transferring their training or in seeking a refund promptly. This change will improve communication between stakeholders when an RTO ceases to operate.

ASQA may share information with other agencies responsible for administering VET legislation, by providing electronic access to that information. This change ensures transparency of information between the agencies that are central to VET operations, to improve quality and confidence across the sector.

As ASQA works through its program to implement the recommendations of the Rapid Review, some of our activities will complement the legislative changes. In particular, by improving the way we conduct audits, write reports and describe evidence and non-compliance, we will achieve greater consistency in our audit and decision making approaches. This will ensure the information ASQA publishes about its decisions is clear and well-informed.

On our website, ASQA publishes certain information about the regulatory decisions we make. We publish this information shortly after a decision is made, and then include updates relating to any review process, the status of the decision, and the date of effect of the decision, as they occur. We have updated our internal processes so that regulatory decisions made under the ESOS Act as well as the NVR Act will be published in the one location. More information about the decisions ASQA publishes on our website can be found in the Decisions and notices section.

Currently, we ensure regulatory decision information is published on the National Register (www.training.gov.au) after all review processes are complete. When this information relates to the imposition of conditions and sanctions (such as a suspension of scope) and the conditions or sanctions no longer apply, the information is no longer displayed on the National Register.

This will change from 1 September 2020, when ASQA will be required to ensure historical and current regulatory decision information is published and remains on the National Register. This means that historical decisions which were required to be published at the time will be displayed on the National Register. Retaining this information on the National Register improves transparency, enables potential students to make more informed decisions, and assists Commonwealth, state and territory governments who refer to the National Register. While these decisions will be located on the ‘Regulatory Decision Information’ tab, historical information will only be viewable if a person selects to display the organisation’s history.

To align with this change, we are also updating our website to display historical decisions (older than three years) through a history tab.

From 1 March 2021, ASQA will be required to publish more details about regulatory decisions on the National Register (www.training.gov.au) at the time of the decision. This includes when ASQA makes a decision to:

• impose or vary a condition of registration
• issue a written direction requiring the RTO to notify its VET students of certain matters
• shorten an RTO’s period of registration
• amend all or part of an RTO’s scope of registration
• suspend all or part of an RTO’s scope of registration
• cancel an RTO’s registration
• not renew an RTO registration
• cancel VET qualifications or statements of attainment.

ASQA will also be required to publish further information about the decision through any review processes. For example, if an RTO applies for a review of a decision, ASQA will also publish information about whether a stay has been granted (i.e. whether the decision is placed on hold while the review is considered) and will publish information about whether the decision is affirmed, varied or revoked when the review is complete.