Through the Looking Glass

Just as I’ve written previously, I continue to shine a light on regulation in Australia’s VET sector by referencing similarities to nursery rhymes. This time, I use a small component from Alice in Wonderland as we look ‘Through the Looking Glass’ and dive a little deeper into the National Vocational Education and Training Regulator Act 2011 (“NVR Act”) and shine a light on an area that is often overlooked, misunderstood or not known at all.

If I had a dollar for every time I have encountered senior-level, executive staff, CEOs of large raining organisations, Compliance Managers, Campus Managers, Paid Board Members, Volunteer Board Members, silent partners, small shareholders - you get the idea...who are unaware of their liability as a senior, executive-level staff member of a registered training organisation or registered provider under the Education Services for Overseas Students Act 2000, I would be a very rich woman. Indeed, instead of sitting here thinking about nursery rhymes, I could be sharing them with my 5-week old grandson who would probably appreciate them so much more!

I have in the past week, had another 4 requests for clarity around this issue and so I thought that it was time to go on an Alice in Wonderland type adventure and go ‘Through the Looking Glass’. In ‘Through the Looking Glass’, Alice again enters a fantastical world, this time by climbing through a mirror into the world that she can see beyond it. There she finds that, just like a reflection, everything is reversed, including logic (for example, running helps one remain stationary, walking away from something brings one towards it, chessmen are alive, nursery rhyme characters exist, and so on). (Wikipedia, accessed 25 July 2021, <https://en.wikipedia.org/wiki/Through_the_Looking-Glass >). 

 In some ways, I often think of the world of the NVR and ESOS Acts as a fantastical world of their own where people often go to look through the mirror to get some understanding of the legislative world they operate in. In the absence of comprehensive clarifications from the regulator themselves, one must look through the mirror to see beyond their current understanding to enable them to function in accordance with their legislative obligations. What happens though when they do look is they sometimes quickly recognise their own role (reflection) in the mirror, end in a pool of tears as did Alice in Wonderland, and see that things, including logic, are so incredibly absent, they go back, dropping into the Mad Hatter’s Tea Party along their way and up the rabbit hole again only to sit in disbelief thinking they might have got it wrong. For many others, they brave the rabbit hole only to become like the Scarecrow in the Wizard of Oz and get lost, waiting for someone to come and help them find their way home before an authentic checkmate.

The Legislative Framework

A company that has been approved by the relevant regulator as an RTO is often referred to as a ‘registered provider’. A legal entity applies to the National VET Regulator, the Australian Skills Quality Authority (“ASQA”) for registration under s 16 of the NVR Act.

 As per s 3 of the NVR Act, ‘registered provider’ has the same meaning as per the ESOS Act. Further, an ‘NVR registered training organisation’ (which is the type permitted to apply for registration) means a training organisation that is registered by the National VET Regulator as a registered training organisation under this Act.

 The NVR Act requires under s 21 that a registered provider must ‘comply with the conditions set out in sections 22 to 28…’. Of particular importance is s 22 and condition – Compliance with the VET Quality Framework. 

Under s 22(1), the registered provider must comply with the Standards for NVR Registered Training Organisations (“Standards”), 1A provides for compliance with the Quality Standards.

  Section 23 of the NVR Act relates to satisfying the Fit and Proper Person Requirements and is mentioned here as it will be discussed in this article as they relate to the legislative obligations on certain people under the NVR Act and, if relevant, the ESOS Act.

Executive Officers & High Managerial Agents

National Vocational Education and Training Regulator Act 2011

Section 3 (Definitions) provides the definition of an 'executive officer'. An executive officer is considered to be anyone who meets the following criteria:

 executive officer, in relation to a registered training organisation, means:

                 (a) a person, by whatever name called and whether or not a director of the organisation, who is concerned in, or takes part in, the management of the organisation; or

                 (b) if the organisation is a body corporate:

                          (i) a person who, at any time during a period for which the organisation is registered, owns 15% or more of the organisation; or

                         (ii) a person who, at any time during a period for which the organisation is registered, is entitled to receive 15% or more of dividends paid by the organisation; or

                 (c) an administrator, receiver and manager, or liquidator of the organisation (other than a receiver and manager, or liquidator, appointed by a court); or

                 (d) if the organisation is a body corporate—the administrator of a deed of company arrangement executed by an organisation; or

                 (e) if the organisation is a body corporate—a trustee or other person administering a compromise or arrangement made between the organisation and another person or other persons.

 Likewise, who is considered a High Managerial Agent is also defined under section 3 of the NVR Act:

high managerial agent of a registered training organisation means an employee or agent of the organisation with duties of such responsibility that his or her conduct may fairly be assumed to represent the organisation in relation to the business of providing courses.

These terms are critical for people to understand because for many board members, volunteers, Training Managers, Compliance Managers, spouses, children, etc., they may not even be aware of the specific criteria in the legislation that affects them, even if all they are is a shareholder (there is a minimum shareholder requirement as seen in this article). As the next piece of legislation is a huge focus in all sectors (schools, vocational education and training and higher education), these additional definitions must be considered too. One doesn’t work individually, they combine so to speak.

Education Services for Overseas Students Act 2000 (CRICOS Providers)

Registration under the Education Services for Overseas Students Act 2000 (“ESOS”) Act operates a little differently. Technically speaking, a registered provider can only apply for registration once their registration under the NVR Act or the Tertiary Education and Quality Standards Agency Act 2011 has been confirmed.

Section 6E details who can be considered a registered provider, stated below:

   (1) A provider is:

                 (a) a registered higher education provider; or

                 (b) a registered VET provider; or

                 (c) an approved school provider; or

                 (d) a person or entity that provides an ELICOS or a Foundation Program; or

                 (e) another person or entity (other than a person or entity specified under subsection (2));

that provides, or seeks to provide, courses to overseas students.

         (2) The Minister may, by legislative instrument, specify a person or entity for the purposes of paragraph (1)(e).

Importantly, s 7A outlines the requirements for deciding whether a provider or registered provider is fit and proper to be registered, as can be seen next:

7A Deciding whether a provider or registered provider is fit and proper to be registered etc.

         (1) This section applies if it is necessary for the purposes of a provision of this Act for:

                 (a) the ESOS agency for a provider or registered provider to decide whether:

                          (i) the agency is satisfied, or no longer satisfied, that the provider is fit and proper to be registered; or

                         (ii) the agency believes on reasonable grounds that the provider is not fit and proper to be registered; or

                 (b) the designated State authority for a provider or registered provider that is an approved school provider to decide whether the authority is satisfied that the provider is fit and proper to be registered.

         (2) In deciding the matter, the ESOS agency or designated State authority must have regard to:

                 (a) whether the provider or a related person of the provider has ever been convicted of an offence; and

                 (b) whether the registration of the provider or a related person of the provider has ever been cancelled or suspended under this Act or the old ESOS Act; and

                 (c) whether the provider or a related person of the provider has ever been issued with an Immigration Minister’s suspension certificate; and

                 (d) whether a condition has ever been imposed under this Act on the registration of the provider or a related person of the provider; and

                 (e) whether the provider or a related person of the provider has ever:

                          (i) become bankrupt; or

                         (ii) taken steps to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

                        (iii) compounded with one or more creditors of the provider or person; or

                        (iv) made an assignment of the remuneration of the provider or person for the benefit of one or more creditors of the provider or person; and

                  (f) whether the provider or a related person of the provider has ever been disqualified from managing corporations under Part 2D.6 of the Corporations Act 2001; and

                 (g) whether the provider or a related person of the provider was involved in the business of the provision of courses by another provider who is covered by any of the above paragraphs at the time of any of the events that gave rise to the relevant conviction or other action; and

                (ga) the matters (if any) specified by the Minister in an instrument under subsection (2A); and

                 (h) any other relevant matter.

      (2A) The Minister may, by legislative instrument, make a determination specifying matters for the purposes of paragraph (2)(ga).

         (3) A related person of a provider or registered provider is:

                 (a) an associate of the provider who has been, is or will be, involved in the business of the provision of courses by the provider; or

                 (b) a high managerial agent of the provider.

         (4) Nothing in subsection (2) affects the operation of Part VIIC of the Crimes Act 1914 (which deals with spent convictions).

         (5) If:

                 (a) the Minister determines that an entity is an ESOS agency for a provider or a registered provider under subsection 6C(2) or (3); and

                 (b) the entity is not a Commonwealth authority (within the meaning of section 85ZL of the Crimes Act 1914);

the entity is taken to be a Commonwealth authority for the purposes of Part VIIC of the Crimes Act 1914.

A provider can apply to become a registered provider under s 9(1) of the ESOS Act and under s 9(2) the application is made to the relevant ESOS Agency (ASqA or TEQSA). A provider is then registered under s 10 by the ESOS Agency. Section 10A provides for the Notice of registration to be given to a provider regarding registration which includes at s 10(2)(b) the name of the Principal Executive Officer and s10(2)(g) any other relevant information that the ESOS Agency considers appropriate.

Section 11 provides for another all-encompassing provision that states as follows:

11 When a provider or registered provider meets the registration requirements

               A provider or registered provider meets the registration requirements if:

                 (a) the provider is:

                          (i) a resident; or

                         (ii) a Table C provider (within the meaning of the Higher Education Support Act 2003); and

                 (b) the ESOS agency for the provider is satisfied that the provider is complying, or will comply, with:

                          (i) this Act; and

                         (ii) the national code; and

                        (iii) if the ELICOS Standards or Foundation Program Standards apply in relation to the provider—those Standards; and

                 (c) if the provider is not an exempt provider—the ESOS agency for the provider is satisfied that the provider is fit and proper to be registered; and

                 (d) the ESOS agency for the provider is satisfied that the provider has the principal purpose of providing education; and

                 (e) the ESOS agency for the provider has no reason to believe that:

                          (i) the provider does not have the clearly demonstrated capacity to provide education of a satisfactory standard; or

                         (ii) the provider has not been providing, or will not provide, education of a satisfactory standard; and

                  (f) if the provider is an approved school provider—the designated State authority for the provider has given the ESOS agency for the provider a DSA assessment certificate; and

                 (g) if the provider is not a registered provider—the provider has paid:

                          (i) the first entry to market charge (if the provider is liable to pay that charge); and

                         (ii) its first TPS levy; and

                 (h) if the provider is a registered provider or has previously been registered—the provider is not liable to pay an amount of:

                          (i) annual registration charge; or

                         (ii) the second entry to market charge; or

                        (iii) the third entry to market charge; or

                        (iv) TPS levy; or

                         (v) late payment penalty for any such charge or levy; and

                  (i) any other requirements prescribed by the regulations are satisfied.

Note 1: For when a registered higher education provider has the principal purpose of providing education, see section 5A.

Note 2: For when a provider is liable to pay the entry to market charges, see section 6 of the Education Services for Overseas Students (Registration Charges) Act 1997.

Section 6 of the ESOS Act provides a definition of an ‘associate’, an extremely important definition for anyone who is affected without realising. The meaning of associate is all-encompassing and states:

6 Meaning of associate

         (1) In this Act:

associate of a person means:

                 (a) the spouse or de facto partner of the person; or

                 (b) a child of the person, or of the person’s spouse or de facto partner; or

                 (c) a parent of the person, or of the person’s spouse or de facto partner; or

                 (d) a sibling of the person; or

                 (e) if the person is a company:

                          (i) an officer of the company; or

                         (ii) an officer of a company that is related to the first‑mentioned company; or

                        (iii) a person who holds a substantial ownership interest in the company; or

                  (f) if the person is an association or a co‑operative—the principal executive officer or a member of the body (however described) that governs, manages, or conducts the affairs of the association or co‑operative; or

                 (g) if the person is a body corporate established for a public purpose by or under an Australian law and another body is responsible for the management or the conduct of the affairs of the body corporate—the principal executive officer or a member of that other body; or

                 (h) if the person is any other kind of body corporate established for a public purpose by or under an Australian law—the principal executive officer or a member of the body corporate; or

                  (i) if the person is a partnership:

                          (i) the principal executive officer or an individual, or a body corporate, that is a member of the partnership; or

                         (ii) an individual who is an officer of a company, or a member of any other body corporate, that is a member of the partnership.

Related companies

         (2) For the purposes of subsection (1), the question of whether companies are related to each other is to be determined in the same manner as the question of whether bodies corporate (within the meaning of the Corporations Act 2001) are related to each other is determined under section 50 of the Corporations Act 2001.

Substantial ownership interest

         (3) For the purposes of subsection (1), a person holds a substantial ownership interest in a company if the total of all amounts paid on the shares in the company in which the person holds interests equals or exceeds 15% of the total of all amounts paid on all shares in the company.

Interests in shares

         (4) For the purposes of subsection (3):

                 (a) a person holds an interest in a share if the person has any legal or equitable interest in the share; and

                 (b) without limiting the generality of paragraph (a), a person holds an interest in a share if the person, although not the registered holder of the share, is entitled to exercise, or control the exercise of, a right attached to the share, otherwise than because the person has been appointed as a proxy or representative to vote at a meeting of members of a company or of a class of its members.

Mutual associates

         (5) If, under this section, one person is an associate of a second person, then the second person is an associate of the first person.

Chains of associates

         (6) If, under this section:

                 (a) one person is an associate of a second person (including because of a previous application of this subsection); and

                 (b) the second person is an associate of a third person;

then the first person is an associate of the third person.

Other definitions

         (7) In this section:

child: without limiting who is a child of a person for the purposes of this section, someone is the child of a person if he or she is a child of the person within the meaning of the Family Law Act 1975.

de facto partner of a person has the meaning given by the Acts Interpretation Act 1901.

parent: without limiting who is a parent of a person for the purposes of this section, someone is the parent of a person if the person is his or her child because of the definition of child in this section.

person includes a provider.

Certain family relationships

         (8) For the purposes of paragraph (d) of the definition of associate in subsection (1), if one person is the child of another person because of the definition of child in this section, relationships traced to or through the person are to be determined on the basis that the person is the child of the other person.

Fit and Proper Persons Requirements & the Fit & Proper Persons Requirements Form

Now that it’s understood where the reference in the NVR and ESOS Acts come from, it’s important to view them in terms of the Fit and Proper Persons Requirements and the form that ASQA, in particular, has providers (and a whole range of other people) sign at various times.  

Fit and Proper Persons Requirements 2011

The Fit and Proper Persons Requirements 2011 (“FPPR”) also includes definitions, including at FPPR 3 which includes:

executive officer has the meaning given by section 3 of the Act.

high managerial agent has the meaning given by section 3 of the Act.

FPPR 4 however, is where the most significant criteria and concern comes from given the number of people this affects, and those who are unaware that they are impacted by this:

FPPR 4  Criteria for suitability for registration

In assessing whether a person, who is an applicant for registration as an NVR registered training organisation, an applicant for renewal of registration as an NVR registered training organisation or who is an NVR registered training organisation, meets the Fit and Proper Person Requirements, the National VET Regulator must have regard to the following considerations:

(a)         whether the person has been convicted of an offence against a law of the Commonwealth or of a State or Territory and if so, the seriousness of the offence;

(b)         whether the person has ever had his, her or its registration on the National Register cancelled or suspended;

(c)         whether the person has ever had a condition imposed on his, her or its registration on the National Register;

(d)         whether the person has ever breached a condition of registration in Subdivision B of Division 1 of Part 2 of the Act;

(e)         whether the person has ever become bankrupt, applied to take the benefit of a law for the benefit of bankrupt or insolvent debtors, compounded with his or her creditors or assigned his or her remuneration for the benefit of creditors;

(f)         whether the person has ever been disqualified from managing corporations under Part 2D.6 of the Corporations Act 2001;

(g)         whether the person was involved in the business of the provision of courses by another provider who is covered by any of the above paragraphs at the time of any of the events that gave rise to the relevant prosecution or other action;

(h)         whether the person has ever provided a State or Territory registering body and/or the National VET Regulator with false or misleading information or made a false or misleading statement to a State or Territory registering body or the National VET Regulator, and whether the person knew that the statement made or information provided to the State or Territory registering body or VET Regulator was false or misleading;

(i)          whether the person has ever been found not to be a fit and proper person for the purposes of the Education Services for Overseas Students Act 2000;

(j)          whether the public is likely to have confidence in the person's suitability to be involved in an organisation that provides or assesses national qualifications; and

(k)         any other relevant matter.

The following makes it explicitly clear who must meet the Fit & Proper Persons Requirements 2011:

FPPR 5  Persons subject to Fit and Proper Person Requirements

A person mentioned in FPPR 4 does not meet the Fit and Proper Person Requirements if the National VET Regulator is satisfied that, having regard to the matters provided in paragraph FPPR 4 (a) to (k), one or more of the following people do not meet the Fit and Proper Person Requirements:

(a)         an executive officer of the person referred to in FPPR 4;

(b)         a high managerial agent of the person referred to in FPPR 4; or

(c)         any person or entity which exercises a degree of control or influence over the management or direction of the registered training organisation.

As can be seen above under FPPR 5, we are taken back to our original definitions of who is impacted, referring back directly to the definitions and meanings provided in the NVR & ESOS Acts.

Fit & Proper Persons Form

Many people just tick the boxes without ever really considering the consequences of their signature on them, their loved ones, Board members and senior staff. In fact, many of these people are completely unaware of the potential concerns. It’s quite rare that people completing these forms understand that a related person could be their brother or sister, their child or their parent for example. In accordance with the final, all-encumbered criteria at FPPR 4(k), the criteria can be impacted by ‘...any other relevant matter’. This particular criterion should have anyone in their sight worry greatly cause we all know how subjective such a criterion is.

ASQA can ask for this form to be completed at any time. Importantly though, it’s also crucial to know that ASQA can conduct inquiries into any statement made in the declaration AND any other matter it considers appropriate in relation to the provision at FPPR 4(k). Importantly though, anyone who falls under the requirement to complete this form is subject to the clause ‘any other relevant matter’ also. Finally, in rounding off how we get to the FPPR, and just to really entrench the requirement, it is also found at Condition 23 that ‘an NVR registered training organisation must satisfy the Fit and Proper Person Requirements’. So, looking through the looking glass, and going round and round the rabbit hole (all the legislation), it’s no surprise that wading one’s way through it makes one feel like Dormouse in Alice through the looking glass!  

We can also clearly see how in looking through the looking glass as we said at the beginning, seeing a reflection where everything seems as though it’s in reverse because it is quite circular and all-encompassing in nature and to some extent, illogical. Why illogical do you ask? Who in their right mind would allow a regulator to determine the suitability of whether someone is fit and proper on the basis of ‘any relevant matter’? The only other place I’ve seen such legislative criteria (and seen it misused more times than I care to consider) is in Ministerial Direction 69, made under section 499 of the Migration Act 1958, where it forms part of the criteria for the grant of a student visa (point 16).

Liability

Liability under the NVR Act

This definition is again discussed further under Part 6-Enforcement where the following is provided:

Subdivision D—Executive officers

133 Personal liability of an executive officer of a registered training organisation—general

         (1) An executive officer of a registered training organisation commits an offence if:

                 (a) the organisation commits an offence covered by section 133A; and

                 (b) the officer knew that the offence would be committed; and

                 (c) the officer was in a position to influence the conduct of the organisation in relation to the commission of the offence; and

                 (d) the officer failed to take all reasonable steps to prevent the commission of the offence.

         (2) The maximum penalty for an offence against subsection (1) is one‑fifth of the maximum penalty that could be imposed for the offence committed by the registered training organisation.

         (3) An executive officer of a registered training organisation contravenes this subsection if:

                 (a) the organisation contravenes a civil penalty provision; and

                 (b) the officer knew that the contravention would occur; and

                 (c) the officer was in a position to influence the conduct of the organisation in relation to the contravention; and

                 (d) the officer failed to take all reasonable steps to prevent the contravention.

         (4) The maximum civil penalty for a contravention of subsection (3) is one‑tenth of the maximum penalty that could be imposed for the contravention of the civil penalty provision by the registered training organisation.

The NVR Act then goes on to describe further where personal liability is of an executive officer and the specific offences that can be brought against an executive officer. These are included in the following table:

133A Personal liability of an executive officer of a registered training organisation—offences covered

               For the purposes of paragraph 133(1)(a), this section covers offences against the provisions of this Act listed in the following table:

Provisions of this Act

Of course, there can be mitigating circumstances where an executive officer can be deemed to have taken reasonable steps to prevent the offence or contravention. These are provided next:

134 Reasonable steps to prevent offence or contravention

         (1) For the purposes of section 133, in determining whether an executive officer of a registered training organisation failed to take all reasonable steps to prevent the commission of an offence, or the contravention of a civil penalty provision, by the organisation, a court is to have regard to:

                 (a) what action (if any) the officer took towards ensuring that the organisation’s employees, agents and contractors had a reasonable knowledge and understanding of the requirements to comply with this Act and the regulations, in so far as those requirements affected the employees, agents or contractors concerned; and

                 (b) what action (if any) the officer took when he or she became aware that the organisation was committing an offence against, or otherwise contravening, this Act or the regulations.

         (2) This section does not limit the generality of section 133.

For the purpose of understanding better the following offences under the NVR Act, it is important to go back to s 3 of the NVR Act to review the definition of ‘civil penalty provision’. A ‘civil penalty provision’ means a subsection, or a section that is not divided into subsections, that has set out at its foot the words “civil penalty” and one or more amounts in penalty units. A ‘penalty unit’ has the meaning given by section 4AA of the Crimes Act 1914. According to the Crimes Act 1914, section 4AA states:

4AA Penalty units

         (1) In a law of the Commonwealth or a Territory Ordinance, unless the contrary intention appears:

penalty unit means the amount of $210 (subject to indexation under subsection (3)).

      (1A) If the amount of a penalty unit is indexed under subsection (3), the Minister must, by notifiable instrument, publish the amount of a penalty unit. However, a failure by the Minister to do so does not invalidate the indexation.

         (2) In this section:

Territory Ordinance means an ordinance that:

                 (a) was made under an Act providing for the acceptance, administration or government of a Territory; and

                 (b) has not become an enactment of the Australian Capital Territory;

and includes a regulation made under such an ordinance.

Indexation of penalty unit

         (3) On 1 July 2020 and each third 1 July following that day (an indexation day), the dollar amount mentioned in subsection (1) is replaced by the amount worked out using the following formula:

where:

base quarter means the March quarter 3 years before the reference quarter.

index number, for a quarter, means the All Groups Consumer Price Index number (being the weighted average of the 8 capital cities) published by the Australian Statistician for that quarter.

March quarter means a quarter ending on 31 March.

reference quarter means the March quarter immediately before the indexation day.

         (5) An indexation factor is to be calculated to 3 decimal places (rounding up if the fourth decimal place is 5 or more).

         (6) Amounts worked out under subsection (3) are to be rounded to the nearest whole dollar (rounding 50 cents upwards).

         (7) Calculations under subsection (4):

                 (a) are to be made using only the index numbers published in terms of the most recently published index reference period; and

                 (b) are to be made disregarding index numbers that are published in substitution for previously published index numbers (except where the substituted numbers are published to take account of changes in the index reference period).

Application of indexed penalty unit

         (8) If the dollar amount mentioned in subsection (1) is increased in accordance with subsection (3), the increased amount only applies to offences committed on or after the indexation day.

This information is critical for all relevant executive officers, high managerial agents, Board members (voluntary or not) and anyone else who may be impacted by this legislation because the compounding effect of the potential breaches are more than serious and significantly greater than most people I’ve spoken to about these issues as part of their PD on their legislative obligations.

For this reason, rather than just publish the table, I will repeat in detail an example of some from the NVR Act (and the ESOS Act) what these penalty units apply to and what the provisions of the table above mean.

93 Offence—providing all or part of VET course outside scope of registration

               An NVR registered training organisation commits an offence if:

                 (a) the organisation provides all or part of a VET course; and

                 (b) the VET course, or part of the VET course, is not within the organisation’s scope of registration.

Penalty: 120 penalty units.

Note:   For the liability of an executive officer of a registered training organisation, see sections 133 and 133A.

94 Civil penalty—providing all or part of VET course outside scope of registration

               An NVR registered training organisation contravenes this section if:

                 (a) the organisation provides all or part of a VET course; and

                 (b) the VET course, or part of the VET course, is not within the organisation’s scope of registration.

Civil penalty:   240 penalty units.

03 Offence—issuing VET qualification without providing adequate assessment

         (1) An NVR registered training organisation commits an offence if:

                 (a) the organisation issues a VET qualification; and

                 (b) the requirements of the qualification relate to assessment provided, or purportedly provided, by the organisation; and

                 (c) the organisation did not provide, or arrange for another person to provide, the assessment necessary for a VET student to satisfy the requirements of the qualification.

Penalty: 120 penalty units.

Note:   For the liability of an executive officer of a registered training organisation, see sections 133 and 133A.

         (2) An NVR registered training organisation commits an offence if:

                 (a) the organisation issues a VET qualification; and

                 (b) the requirements of the qualification relate to assessment provided, or purportedly provided, by the organisation and another registered training organisation; and

                 (c) in respect of the requirements of the qualification relating to the organisation, the organisation did not provide, or arrange for another person to provide, the assessment necessary for a VET student to satisfy the requirements of the qualification.

Penalty: 120 penalty units.

Note:   For the liability of an executive officer of a registered training organisation, see sections 133 and 133A.

104 Civil penalty—issuing VET qualification without providing adequate assessment

         (1) An NVR registered training organisation contravenes this subsection if:

                 (a) the organisation issues a VET qualification; and

                 (b) the requirements of the qualification relate to assessment provided, or purportedly provided, by the organisation; and

                 (c) the organisation did not provide, or arrange for another person to provide, the assessment necessary for a VET student to satisfy the requirements of the qualification.

Civil penalty:   240 penalty units.

         (2) An NVR registered training organisation contravenes this subsection if:

                 (a) the organisation issues a VET qualification; and

                 (b) the requirements of the qualification relate to assessment provided, or purportedly provided, by the organisation and another registered training organisation; and

                 (c) in respect of the requirements of the qualification relating to the organisation, the organisation did not provide, or arrange for another person to provide, the assessment necessary for a VET student to satisfy the requirements of the qualification.

Civil penalty:   240 penalty units.

111 Civil penalty—breach of condition of registration

         (1) An NVR registered training organisation contravenes this subsection if:

                 (a) a condition of the organisation’s registration, as mentioned in section 21, is of a kind prescribed by the regulations for the purposes of this paragraph; and

                 (b) the organisation does an act or omits to do an act; and

                 (c) the act or omission breaches the condition.

Civil penalty:   240 penalty units.

         (2) An NVR registered training organisation contravenes this subsection if:

                 (a) a condition of the organisation’s registration, as mentioned in section 21, is of a kind prescribed by the regulations for the purposes of this paragraph; and

                 (b) the organisation does an act or omits to do an act; and

                 (c) the act or omission breaches the condition.

Civil penalty:   120 penalty units.

114 Offence—falsely claiming to be an NVR registered training organisation

               A person commits an offence if:

                 (a) the person holds himself, herself or itself out as an NVR registered training organisation; and

                 (b) the person is not an NVR registered training organisation.

Penalty: 300 penalty units.

Note:   For the liability of an executive officer of a registered training organisation, see sections 133 and 133A.

115 Civil penalty—falsely claiming to be an NVR registered training organisation

               A person contravenes this section if:

                 (a) the person holds himself, herself or itself out as an NVR registered training organisation; and

                 (b) the person is not an NVR registered training organisation.

Civil penalty:   600 penalty units.

124 Offence—making false or misleading representation relating to VET course or VET qualification

               A person commits an offence if:

                 (a) the person makes a representation that relates to:

                          (i) all or part of a VET course; or

                         (ii) a course that is held out as being a VET course; or

                        (iii) part of a course that is held out as being part of a VET course; or

                        (iv) a VET qualification; or

                         (v) a qualification that is held out as being a VET qualification; and

                 (b) the representation is false or misleading in a material particular.

Penalty: 60 penalty units.

Note:   For the liability of an executive officer of a registered training organisation, see sections 133 and 133A.

 

125 Civil penalty—making false or misleading representation relating to VET course or VET qualification

               A person contravenes this section if:

                 (a) the person makes a representation that relates to:

                          (i) all or part of a VET course; or

                         (ii) a course that is held out as being a VET course; or

                        (iii) part of a course that is held out as being part of a VET course; or

                        (iv) a VET qualification; or

                         (v) a qualification that is held out as being a VET qualification; and

                 (b) the representation is false or misleading in a material particular.

Civil penalty:   120 penalty units.

 

Under the ESOS Act, we have similar provisions including for example:

8 Offence: providing or promoting a course without a registered provider

         (1) A person commits an offence if:

                 (a) the person:

                          (i) provides a course at a location to an overseas student; or

                         (ii) makes an offer to an overseas student or an intending overseas student to provide a course at a location to that student; or

                        (iii) invites an overseas student or intending overseas student to undertake, or to apply to undertake, a course at a location; or

                        (iv) holds himself, herself or itself out as able or willing to provide a course at a location to overseas students; and

                 (b) the person is not registered to provide that particular course at that particular location.

Penalty: Imprisonment for 2 years.

         (2) Subsection (1) does not apply if the provision, offer, inviting or holding out is in accordance with an arrangement that the person has with a registered provider for that particular course for that particular location.

Note 1: This means that, if 2 or more providers jointly provide a course, then only one of the providers needs to be registered.

Note 2: However, a provider of a course who is not registered must identify the registered provider in any written material promoting the course (see section 107) and must not engage in misleading or deceptive conduct in relation to the course (see subsection 83(2)).

Note 3: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

Defence: surveys etc. to assess demand for a course

         (3) Subsection (1) does not apply as a result of subparagraph (1)(a)(iv) if:

                 (a) the relevant conduct was only for either or both of the following purposes:

                          (i) carrying out surveys or other investigations to assess the demand for the course; or

                         (ii) negotiating with another institution or other body or person in connection with designing or developing the course; and

                 (b) the person took reasonable steps to ensure that:

                          (i) overseas students and intending overseas students who were, or might become, interested in undertaking the course; and

                         (ii) any institution or other body or person who might also provide the course;

                        were aware that:

                        (iii) the person was not a registered provider for the course for the location; and

                        (iv) the relevant conduct was not carried out in accordance with an arrangement that the person had with a registered provider for the course for the location; and

                 (c) the person neither invited nor accepted any amount for the course from overseas students or intending overseas students, or from the students’ agents.

Note:   A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code.

107 Failing to identify registered provider in written material

                   A person commits an offence if the person in written material, including in electronic form:

                    (a) makes an offer to an overseas student or an intending overseas student to provide a course at a location to that student; or

                     (b) invites an overseas student or intending overseas student to undertake, or to apply to undertake, a course at a location; or

                     (c) holds himself, herself or itself out as able or willing to provide the course at a location to overseas students;

and the material fails to identify any one or more of the following:

                     (d) the registered provider for the course;

                     (e) the unique identifier allocated to the registered provider under paragraph 14A(4)(d);

                      (f) any other information prescribed by the regulations.

Penalty: Imprisonment for 6 months.

Note:     Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

108 Providing false or misleading information

                  A person commits an offence if the person provides false or misleading information in complying or purporting to comply with any of the following provisions:

                     (a) section 13 (TPS Director may require information);

                     (b) section 19 (giving information about accepted students);

                     (d) subsection 26(1) or (3) (disclosure obligations of registered providers).

Penalty: Imprisonment for 12 months.

Note:     Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Like any good Chess game, however, the odds will not be in ASQA’s favour if you truly understand this. Prevention and awareness is better than cure.

RTO Doctor will soon be launching its 6 month Mentor Program and I’d love to welcome you to apply. The program is 16 duration and is designed to support you to diagnose and address 1 or compliance points within the 6 month program. The RTO Doctor's Mentorship Program is RTO Doctor’s customised six-month program that focuses on providing compliance personnel such as but not limited to CEO’s, Compliance Managers, Compliance Coordinators, Training Managers, Training Coordinators with the most evolved and effective approaches to establishing and ensuring RTO compliance today.  

RTO Doctor’s Mentorship Program is:

A customised approach to helping you and your RTO with compliance matters;

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A power-packed mastermind dynamic, where you can leverage a diversity of hard-earned business knowledge and experience; and

Like having your own RTO Doctor permanently in your RTO; the best long term, sustainable solution to compliance available today.

If you or your staff have benefitted from this article and were interested in learning, webinars and seminars, which are information-rich, then The RTO Doctor Mentorship Program is about implementing them for your organisation. There are limited spaces available in the Mentoring Program. Those spaces are via an application process only. For more information, contact me directly via the RTO Doctor website.

Disclaimer:

This is 'general advice' however, readers are encouraged to see their RTO Lawyer as soon as possible. If you would like to be referred to an RTO legal specialist, please contact me for a discreet referral.

 

 

RTO Doctor

The first choice for RTO sanction management and compliance assistance.

RTO Doctor assists VET & international education providers around the country to ensure their compliance with their regulatory requirements; a critical issue for RTOs around the nation currently experiencing a very hostile and punitive regulatory environment. Raelene Bartlett, Founding Director of RTO Doctor published the book CRICOS CPR: Top 5 Tips to Rescue Your RTO as a way of supporting providers in navigating this minefield. She has also published the number 1 international bestseller in 3 categories "National Vocational Education and Training Regulator Act 2011 (Cth): An Investigation Into Merits Review" and 'The Human Toll: Is The Nature of Regulation Under The Australia Skills Quality Authority Destructive?'