Dealing with ASQA Appeals, Sections 26 Notices and AAT Appeals
Addressing Non-Compliances and ASQA Appeals
Since 2016, there has been a change in how ASQA treats non-compliances. Previosuly, where non-compliance was identified, providers were only required to provide evidence to ASQA that they had updated their procedures or training and assessment strategies. Under ASQA’s student-centred audit approach, providers are still accountable for updating procedures, and are also required to remedy poor practices, particularly where students have been affected by poor training and assessment practices (ASQA, 2018).
Addressing the non-compliance identified for future learners will usually involve:
- correcting the process or system that has led to the non-compliance
- implementing the revised process or system to ensure the non-compliance does not impact any future learners.
To demonstrate to ASQA that this has occurred, in most cases providers would submit evidence of a new process or system to ASQA and how you have implemented it. You will need to complete this process within 20 working days.
In some cases, ASQA may impose sactions or conditions, or issue a notice of intention to make a decision on provider’s registration.
New registration applications and scope applications for RTOs less than 2 years old, a rectification opportunity is not provided, and ASQA rejects the applications.
Opposing an ASQA Decision
If you are dissatisfied with a decision made by ASQA, you have a number of options (ASQA, 2019):
RTO
- If the decision relates to an application—consider the reasons for the decision, address the outstanding areas of non-compliance and submit a new application
- Ask ASQA to reassess its position (applies to certain decisions only)
- Ask ASQA to review the decision (applies to certain decisions only)
- Apply to have the decision reviewed by the Administrative Appeals Tribunal (AAT).
CRICOS
If you are not satisfied with a decision made by ASQA relating to your CRICOS registration, you have a number of options:
- Consider the reasons for the decision, address the outstanding areas of non-compliance and submit a fresh application.
- Ask ASQA to review the decision (under the Education Services for Overseas Students Act 2011).
- Apply to have the decision reviewed by the Administrative Appeals Tribunal (AAT).
ASQA will inform you of your options when they advise you of their decision.
ASQA Appeals
Providers must lodge an appeal to ASQA to review a decision within 30 days after they are informed of ASQA’s decision. Providers may also add additional evidences/information which they think may support their appeal, or which, in their perspectives, were not fairly considered by the auditor.
We assist in;
- Reviewing the ASQA decision
- Reviewing the ASQA Report
- Reviewing evidences provided with the application or during the audit
- Making a recommendation based on the review
- Preparing and lodging an appeal to ASQA to review the decision.
It may take up to 90 days for ASQA to make a decision about the review application. During this period, ASQA may delay the effective date of the original decision or ask the provider to agree to certain conditions while the review is going on.
Providers will still have an option to lodge an appeal to the Administrative Appeals Tribunal (AAT) if the outcome of ASQA’s review is not satisfactory.
Administrative Appeals Tribunal (AAT) Appeals
The Administrative Appeals Tribunal (AAT) provides independent review of a wide range of administrative decisions made by the Australian Government (and some non-government bodies).
Link: Administrative Appeals Tribunal (AAT)
AAT appeal must be lodged within 28 days of receiving notification of the ASQA decision.
In most cases, going to AAT shall require services of a lawyer or a law firm. There are a number of leagal actions and measures that need to be undertaken in order to challenge an ASQA’s decision.
Prior to engaging the lawyers, we can assist in;
- Reviewing the original and outstanding non-compliances and assessing the risk
- Assessing the risk impact
- Reviewing the evidences presented, and suggesting possible remedies/actions to address the outstanding non-compliances
- Providing a report and recommendations for maintaining compliant practices and mitigating the risk
We can also formally work with your lawyers to provide an independent review and report.
Responding to Section 26 Notices
Section 26 of the National Vocational Education and Training Regulator Act 2011 requires that an NVR registered training organisation must give the National VET Regulator such information as the Regulator requests, by notice in writing, for the purposes of this Act.
ASQA exercises this authority in common instances such as the Annual Declaration of Compliance by the CEO, pre-audit information, and information under notice to the providers on aspects of theior operations including the third-party.
ASQA may seek any or all information on a provider’s operations under this section at ANY TIME, not necessarily related to any application or renewal. Providers receiving notices under Section 26 have 2o working days to provide the required information. ASQA may or may not decide to call a compliance audit based on the informationr received.
We, accordingly, assist in;
- Reviewing the information and evidence requirement
- Conducting an internal review/audit
- Preparing and organising the required informaton and evidences
- Preparing a submission to ASQA
- Making recommendations for continuous improvement and quality
- Attanding any resultant ASQA audit
The response process can be very exhaustive. We recommend that providers act on the notice without any delay.
ASQA Links
