An Extract from "The Human Toll": Jay's Story.

On 9 June 2021, my third book 'The Human Toll: Is the Nature of Regulation under the Australian Skills Quality Authority Destructive?' was published. Since then, it has joined my previous two books amongst the international best seller lists in the areas of Vocational Education and Training ("VET"), Education Policy and Administrative Law. While the book continues to be distributed around the world on platforms such as Amazon and Booktopia, people are still ordering signed copies of my book in significant numbers; these sales have meant that this publication has recently become my best seller of all 3 titles.
What makes this book so special you ask? I'm told that it was the real stories of real people who had become victims of the regulatory practice of the Australian Skills Quality Authority ("ASQA").

To celebrate this milestone, I'm extracting one of those stories. It is the story of Jay who in addition to losing his RTO, he lost his marriage and battled serious health issues while fighting to save his RTO. He's not alone though. There are other stories of loss, grief and destruction in this book, Jay is but one of them. I encourage you to share your feedback regarding Jay's story at the end of this article.

As this extract has been taken directly from the book, all legislation, job roles and titles were correct and current at the time of publication. The disclaimer that follows has also been extracted from the book and applies to this article. It is important to remember that this article is not about whether the final audit decision was right or wrong. The important thing to remember is the behaviour of the regulator and its employees in managing the audit process and the subsequent appeal.

Disclaimer

The author provides notice that the stories that follow have been provided by victims of ASQA’ regulatory behaviour.  In some cases, the victims have provided the stories themselves already written, in other cases, interviews were conducted with the victim who detailed their experience verbally to the author.  In all cases, the stories below have been reviewed and approved by the victim for publication.

All stories were collected and shared under a Collaboration Agreement where the ASQA victim declared the facts of their stories and their experiences to be true.  The author of the book has not verified any facts, albeit, in some cases, the author was already aware of the experiences of these collaborators through professional interactions.

The important thing to remember is that these stories and experiences are being shared as victim testimonies.  These stories are how these victims perceived their story to take place and the experiences and emotions that they went through and in most cases, continue to go through.  That ASQA may have a different perception to their behaviour or the facts that led to the decisions that ultimately impacted these people's lives so greatly, while also important, is not really the focus of this sharing these stories.  The focus of course is that it doesn’t matter whether the RTO was actually meeting its regulatory obligations, the focus is on the fact that:

1. Even the regulator has legal requirements it must abide by in executing its regulatory functions;
2. Each RTO and person affected was entitled by law to receive natural justice and to experience procedural fairness at every stage of their ASQA journey;
3. That there are model litigant obligations that MUST be followed by all Commonwealth lawyers, even at the AAT;
4. When the stakes are so high for a business, the regulator MUST only use qualified auditors and technical experts;
5. Audits should not commence while there is a conflict of interest that is not being appropriately managed;
6. The Commonwealth MUST be mindful of the consequences of their abrupt policy changes;
7. All RTOs are workplaces and ASQA auditors are in a workplace.  Albeit, this needs to be tested from a legal perspective, if the auditors’ workplace is considered to include the RTO, there needs to be recognition of workplace bullying and harassment laws and the accountability for breaches of this legislation if it applies.  Likewise, if an RTO perceives that it is being bullied and harassed by ASQA auditors, it should be able to ask the auditor to leave the premises and exercise any other rights that they would normally have under relevant legislation.  Furthermore, there should not EVER be a negative consequence (such as, but not limited to vengeance or coming back for another bite at the cherry) for exercising your legal rights in this regard.

Most importantly however, the focus of sharing these stories is on the fact that all of these people are human beings.  They deserve to be treated in an empathetic way.  Everyone has inherent biases, admit to them and manage them.  ASQA staff might benefit from training in being more sensitive to other people.  Sensitivity training in this context is focused on making employees aware of their attitudes and behaviour toward others.  Other forms of training that should be considered on an ongoing basis are around ethical decision-making, identifying bias, cultural sensitivity training (there has long been a feeling by many in the VET sector that ASQA as an agency is racist) and training in micro-aggression in the workplace.

According  to Dr Derald W Sue from Columbia University, micro-aggressions can be perceived as everyday verbal, nonverbal slights, snubs, or insults, whether intentional or unintentional, that communicate hostile, derogatory, or negative messages to people based solely upon being members of a marginalised group.

* Dr Derald W Sue is a university Professor at the University of Columbia who has published several books on micro-aggressions.  Dr Derald Sue has put together a YouTube video explaining micro-aggression in everyday life at the following link <https://youtu.be/BJL2P0JsAS4>.

Jay's Story

Jay’s story is an example of where ASQA have determined the outcome before they’ve even reviewed the evidence and that no matter what you provide, you can’t change that perception.  Jay’s life was so completely destroyed by ASQA that, coupled with his own health problems and a failing marriage, it all became too much and he walked away, allowing ASQA to just cancel his registration.  He was unable to continue the fight to save his RTO (or his reputation) because of the pressure mounting in other areas of his life. 

Jay also experienced severe and complex health issues that nobody should have to go through. ASQA’s usual pattern of putting the cart before the horse in complaint investigations and asking a provider to demonstrate their innocence after being judged guilty before any investigation has even taken place and re-registration audits that get re-labelled as compliance monitoring audits so that ASQA can recover an obscene amount of money via ‘cost-recovery’.  Combine this with auditors who haven’t got the slightest clue about what it is you deliver because they are not even remotely qualified or experienced in the area; but you, as a provider are highly qualified and experienced. This auditor, though, treats you as though you know nothing!  Here is Jay’s story.

Like most RTOs in December of that year, it was a few days before business closure for the Christmas and New Year break.  It was also 15 days before his wedding.  Weddings are an important milestone for anyone but, in his culture and at his age, it had even more significance.  It had been a busy year.  An international expert in his field, Jay was well recognised throughout the world for his community work and community representation of minority groups.  He is well known around the country for his work in charitable organisations around Australia.  He is a member of numerous advisory boards and councils (both government and non-government) that have meant that for over a decade, he has contributed widely and significantly to the support and promotion of community development, cohesion and wellbeing.  He has been for a number of years, a regular speaker on news and current affairs programs in relation to human rights issues and his areas of expertise.  His RTO (and life as he knew it), was about to unravel faster than the speed of light.  How does such an accomplished member of the community become involved in such a tragedy?

This story begins on one particular Thursday afternoon in late December with the arrival of a section 26 notice from ASQA’s office in that State.  The email, short and simple reads:

 Please find attached NVR Act section 26 notice for your response and submission of the required information. I look forward to receiving your submission and response by close of business xxx December xxx.
 *The exact date has been redacted to protect Jay's identity and that of his RTO.

**A section 26 notice is a Notice to give information under the National Vocational Education and Training Regulator Act 2011 (Cth).

A section 26 notice in this case, and many others, is usually an attachment on an email which, when you look at it, looks like the following:

It will include the CEO’s details or may be addressed to ‘The Proper Office’ or something similar.  This particular section 26 notice demanded that a significant amount of information for 3 full years be produced within 7 days, the information included :

As per the standard ASQA template, it is followed by:

Failure to comply

If you fail to comply with this notice ASQA may apply for an injunction in the Federal Court of Australia requiring you to comply with this notice.

If you fail to comply with this notice ASQA may impose an administrative sanction under section 36 of the NVR Act against your registration.

LEGISLATION RELEVANT TO NOTICE

National Vocational Education and Training Regulator Act 2011

*All stated legislation was current at time of publication. 

It’s not hard to understand why such a notice out of the blue might cause an upstanding and well respected business owner to fly into a state of panic.  Completely taken aback by the Notice and its request, Jay calls the number in the email signature and asks to speak to Jenny. 

For 7 minutes, they discussed why such a notice had been issued as Jay had no reason to believe there was a problem.  He is simply told because there is a need ‘...to investigate some matters of concern which requires appropriate testing and once that is done, you will be contacted further’. Jenny also stated that ‘…there will be a compliance monitoring desk audit in early January to look over the information provided and I dare say that it will result in further questions  or actions or whatever happens...’.  Jay asks if this has something to do with a complaint because he had no idea what it could have been from otherwise. Jenny simply advised that ‘ASQA cannot confirm that it is NOT a complaint’.

The following day, Jay receives a Notice of Audit.  It advises that there will be a desk audit in early January.  A brief summary of a complaint is provided but nothing further, not even an indication of what clauses the audit will cover.  Three months later, Jay receives his audit report with a Notice of Intention to Cancel his NVR registration with a response due on conflicting dates - the letter provided one date and the ASQAnet portal provided a completely different date.  Amongst any rectification evidence, Jay needed to provide a response as to why he had enrolled an international student on a student visa in breach of section 8 of the Education Services for Overseas Students (“ESOS Act”).

What followed was a year of drawn out back and forth responses to and from ASQA.  Interestingly, Jay’s RTO was subject to additional regulatory requirements as the qualifications he was delivering were from a training package where post course graduation licensing is required prior to being able to work in the industry.  The licensing regulator knew of Jay’s expertise in this area and considered his RTO amongst one of the best training providers in Australia in this particular industry area.  They (the licensing regulator) had been in and audited his courses previously and found Jay’s courses to be outstanding, producing some of the best graduates that their licensing body had seen in a very long time.  They were more than satisfied.  Jay’s RTO was also the preferred provider for one of Australia’s largest Commonwealth Government units, hailed around the world for their expertise in the areas that Jay trained them in.

Jay engaged a specialist consulting company to assist him to provide the relevant rectification material and response to each stage of the audit process and his application for reconsideration.  It’s at this point that Jay has, ever since, tried to warn other RTOs about the danger of not using the right consultants. It’s so important that people ask others who have been through it; your Consultant can quite literally make or break your case.  In Jay’s situation, they were a contributing factor to what ultimately caused him to have to walk away from it all and say goodbye to his RTO.  In trusting the consulting company he had engaged at that point to represent his best interests, the last thing he expected was for them to undertake an exercise to advise ASQA that not only was ASQA correct about ‘assessment not meeting the requirements of clause 1.8’, but it was far worse than ASQA had identified and actually impacted in their opinion, many, many more students.’ 

Regardless of whether this determination made by the consulting company was correct or not, if you are engaged as a Consultant by a company to represent them and their company to provide evidence of rectification to the regulator, it is NOT part of your duty to then proceed to tell that regulator that the damage is far worse than they identified.  Your responsibility is to the company that engaged you, not to the regulator!  This single factor made the remainder of Jay’s dealings with ASQA almost impossible, to the point where ASQA actually noted in their audit report that ‘The RTO’s independent audit findings appears to concur with ASQA’s findings and go one step further to state that none of the students sampled by the consulting company had demonstrated competency when issued with their certification’.

Concurrent with this nightmare, Jay’s marriage of 12 months was very rapidly deteriorating due to the pressure, including the financial pressure and his extended absence from home while trying to resolve these matters and trying to save not just his business but his reputation as well.  ASQA had also raised allegations that because his RTO was in receipt of public funds, the audit findings suggested that he was not fit and proper and was acting against the public interest.  Suddenly, everything he had worked so hard for was about to fall apart and his wife of 12 months was struggling.  Not only was his wife struggling to deal with what was happening with her marriage as a direct result of what was happening with Jay, but she was also feeling very homesick.   She desperately wanted to return home to her family where she felt she had more support while he was going through this.  As a newlywed couple, they had only just returned from their wedding when all this started with ASQA and 1 year in, they had still not been able to even go away for a weekend for their honeymoon.  Their marriage became more and more vulnerable.  Jay had stopped eating because of the stress, the financial pressure, the false allegations and combined with the trouble he was experiencing in his marriage now too, he had lost a significant amount of weight and was no longer sleeping either.  He was becoming very unwell.

The pressure ultimately became too much. Jay withdrew his appeal to the Administrative Appeals Tribunal (“AAT”) and allowed ASQA to cancel his registration.  His wife had walked out on him, he had no money left and no desire to continue.  Remembering how important marriage was to Jay, in his mind if he had lost his wife, was almost bankrupt and could never recover any costs for pursuing the damage caused by ASQA and was so ill from pursuing his right to natural justice, what was the fight for? The cost of everything he had lost was too big; some of that loss was not ever going to be recoverable anyway because it amounted to personal pain and suffering; the breakdown of his marriage, his loss of health, and his reputation.  He had already lost everything that he had fought so hard for, and he had lost his wife.  Rather than pursue an appeal that he was legally entitled to do and had an excellent potential of winning, Jay chose to walk away knowing that ASQA were going to cancel his registration. 

While Jay ultimately lost a lot, he is the first person to tell you that he gained so much too from what happened.  He gained a better understanding of how toxic the national VET regulator is and how certain individual employees of the national VET regulator are worse than most.  In fact, Jay would tell you that Jenny is probably one of the most toxic ASQA employees out there - and he wouldn’t be alone.  The writer is aware of at least a dozen other providers in that State who would agree that Jenny is a narcissistic person whose sole purpose appears to traumatise people and destroy their lives.  The writer is also aware of at least 2 national RTOs who have changed their Head Office address to reduce the risk of Jenny ever having an opportunity to try and destroy their business, they considered it a vital risk management strategy and if they’ve been able to do that, this writer certainly wouldn’t disagree with them, in fact, she’d probably encourage it.

Jay subsequently was issued with divorce papers and went through the divorce process. What does he do today and where is he today?  He has rebuilt his life as best as he can, albeit alone with no wife beside him, something that at his age and culturally is not common.  He is continuing to work in the community where he adds enormous value that is respected and valued.  He still has relationships in the VET sector with some people and from time to time will do guest speaking roles.  Right now though, he’s working on things much bigger than ASQA, things that will make a difference in this world and the Jenny’s of the world cannot take away.  There comes a time when those who are bullied are so tired of being trampled on, that they gather this enormous strength from their circumstances.

They develop the potential and the need to subsequently do good.  When those feelings become overwhelming again, you are driven to keep striving to leave a legacy.  For Jay though, this is just a part of his nature and always was, long before the ASQA chapter in his life came along like a cyclone destroying everyone and everything in its wake.  ASQA might have given him a ‘punch to the gut causing a technical knockout’ but they haven’t beaten him.  Jay’s life is far happier today and he is doing what he does best, living a life free of stress and anxiety from ASQA and its bullies.

Commentary

One of the  biggest issues in Jay’s situation was the ASQA Manager responsible for his audit.  As mentioned earlier, the author is aware of a number of people who have been severely impacted by this person’s narcissistic behaviour and approach to managing regulatory affairs on behalf of ASQA.  Once upon a time, this was only relevant to those people who came under her jurisdiction; however , now that matters are sent all over the place, the writer has seen this woman’s signature on ASQA correspondence that is also outside his jurisdiction.  

This woman’s behaviour has been implicated in Jay’s situation but I have also seen her implicated in recurrent miscarriages for another provider, a near heart attack in another and severe depression in yet another.  This woman is still in ASQA’s employ as at the time of publication and continues to behave in this manner right under the Chief Commissioner’s nose.  

The second biggest issue in Jay’s case of course is that of the somewhat well-known consulting company that for some peculiar reason, submitted documentation to the regulator that was not in his best interests.  It is unclear why the consulting company had betrayed their client in this manner (after all it was Jay’s company that engaged them) although what I can say is that they were incredibly lucky that Jay didn’t sue them for at least negligence; he would have had every right to and in the author’s opinion, should have.  As long as these cowboy consulting companies continue to engage in this sort of behaviour and worse, they will continue to be the cause of many other RTO provider’s problems.  This wasn’t even a case of Jay not doing his due diligence - he did!  The company came recommended, had been around for a long time and he’d heard good things about them.  It’s unclear how something could go so horribly wrong.

While it is true that Jay is fortunate in that he has reinvented himself and is enjoying his new career, it does not diminish what he lost - those things can never be replaced.  And don’t think he doesn’t experience trauma related to what he went through still, you’d be fooled if you believed that to be true too.  Jay still has flashbacks, deals with the fact that his wife left him which is a cultural and religious taboo, he is incredibly empathetic  and so when he learns that someone is going through something similar, he gives far more than he should of his time and expertise to assist them.

The VET sector and the industry internationally that Jay was involved in, as well as the Commonwealth government who used to engage him for his specialist skills are the ones who have missed out.  Sadly, all because of the incompetence and ego of one woman who undermines the entire ASQA jurisdiction she practices from.

What are your thoughts regarding Jay's story?

Share your thoughts on mmy LinkedIn page.

While we're not quite at the stage of Dangerous Minds and Freedom Writers, we do have some of these issues present in our classrooms (both secondary and adult) today. Until policymakers understand that for there to be better outcomes from our education system, these cases will continue. Policy-makers need to understand that a more holistic approach to classroom management is needed and that the teacher can only be responsible to a point before their own safety becomes compromised.

I wrote about my experiences in prison education intentionally. While still not perfect, those environments are well resourced and the approach to supporting each person is holistic in nature. Not only are their educational needs met but they receive assistance and support with other areas of their lives too. This doesn't mean that such approaches need to be institutionalised either. The same can be achieved in an ordinary setting too provided the support, resources, funding and access are available.

I recall being on yard duty one day in one of the high schools I taught in. I was out on the oval trying to get the 'problem kids' away from the fences where people would visit at recess and lunch with cigarettes, drugs and inevitably, luring physical fights and other gang activities. On more than one occasion I recall being concerned for my own safety because there were no other teachers in the vicinity and I was vulnerable. What saved me? Probably the good rapport I had built with the students and 'Pentecostal Pedagogy'. When you can't rely on the system to protect you and the system is so bent it can no longer see itself in the mirror, what more can you do?