CITATION: Targett Retail Training Pty Ltd v New South Wales Vocational Education and Training Accreditation Board [2007] NSWADT 68 DIVISION: General Division APPLICANT PARTIES: Targett Retail Training Pty Ltd RESPONDENT New South Wales Vocational Education and Training Accreditation Board FILE NUMBER: 063393 HEARING DATES: 28 February 2007 SUBMISSIONS CLOSED: 28 February 2007 DATE OF DECISION: 30 March 2007 BEFORE: O'Connor K - DCJ (President) CATCHWORDS: Vocational and Educational Training Act 2005 - refusal to extend scope of registration - Vocational and Educational Training Board - refusal to extend scope of registration MATTER FOR DECISION: Principal application Administrative Decisions Tribunal (General) Regulation 2004 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Education Services for Overseas Students Act 2000 (Cth) Vocational and Educational Training Act 2005 APPLICANT L Targett REPRESENTATION: RESPONDENT P Cribb, solicitor ORDERS: Decision under review affirmed REASONS FOR DECISION 1 The Vocational and Educational Training Board (the Board) has refused the review applicant's application for extension to the scope of its registration to conduct a training course known as Certificate IV in Training and Assessment (TAA40104). 2 The Board is constituted under Part 2 of the Vocational and Educational Training Act 2005 (the Act). It is responsible for the authorisation of the operations of registered training organisations (RTOs). The certificate of registration issued to RTOs by the Board shows the period of registration and the qualifications and courses the RTO is registered to deliver. The RTO is allowed to use the Board logo in connection with the qualifications and courses for which it has been accredited in accordance with the Board's advertising guidelines. 3 The Act has the following objects: ' 3 Objects' The objects of this Act are as follows: (a) to establish a registration and accreditation framework for vocational education and training, in particular by applying nationally agreed standards, (b) to ensure the quality and integrity of vocational education and training in this State, (c) to provide for the approval by the Board of persons (other than official universities) to provide courses for overseas students (such approval forming the basis for registration under the Education Services for Overseas Students Act 2000 of the Commonwealth), (d) to promote consistency of standards in vocational education and training, (e) to encourage the recognition of vocational courses that are accredited under this Act.' 4 Very many of the Board's decisions are reviewable by this Tribunal. Section 47 of the Act provides: ' 47 Review of certain decisions by Administrative Decisions Tribunal A person who is aggrieved by any of the following decisions of the Board may apply to the Administrative Decisions Tribunal for a review of the decision: (a) refusing to register a training organisation under section 12, (b) imposing conditions under section 13 (2) or (3) on the registration of a training organisation, (c) refusing to renew the registration of a training organisation under section 14, (d) refusing to amend the recorded details of a training organisation under section 16, (e) amending the scope of registration or recorded conditions of a training organisation under section 18 (1) (a) or (b), (f) suspending the registration, or part of the scope of registration, of a training organisation under section 18 (1) (c), (g) cancelling the registration of a training organisation under section 18 (1) (d) or 19, (h) refusing to approve the provision of training or assessment under section 20, (i) refusing to accredit a vocational course under section 26, (j) imposing conditions under section 27 on the accreditation of a vocational course, (k) refusing to renew the accreditation of a vocational course under section 28, (l) cancelling the accreditation of a vocational course under section 29, (m) refusing to approve the provision of training or assessment under section 31, (n) refusing to approve a person to provide courses for overseas students under section 34, (o) imposing conditions under section 34 or 35 (1) (c) on the approval of a person to provide courses for overseas students, (p) amending the approval of a person to provide courses for overseas students, or revoking or amending the conditions to which the approval is subject, under section 35 (1) (a) or (b), (q) suspending or cancelling the approval of a person to provide courses for overseas students under section 35 (1) (d).' 5 In this instance, though the provision is not expressly referred to in any of the Board's communications with the applicant, the Tribunal is satisfied that the decision falls into the category of decisions covered by s 47(a). (For further discussion of this matter see the end of these reasons.) 6 The applicant is an RTO, current certificate issued in 2004 for a period of five years. The certificate lists numerous courses that it is entitled to offer. The course, which is the subject of the present dispute, is one that has been recently developed. It replaced a course known as 'Certificate in Assessment and Workplace Training (BSZ40198)' which the applicant did hold an accreditation to deliver. At hearing, Ms Margaret Willis, General Manager of the Board, gave evidence. She advised that the new Certificate IV course is seen as one of great significance in the vocational and educational training sector. This is because persons who successfully complete the course are thereby qualified to undertake the training of trainers across all industries. 7 She said that of 1000 RTOs, approximately 500 were accredited as at 2003 to provide the previous course. Responding to concern over the standard of the courses being offered, a national policy was implemented, phasing out the old BSZ course, and requiring organisations who wished to offer the new Certificate IV case to apply for extension of the scope of their registration. 8 Applicants for a fresh accreditation are required to submit documentation addressing detailed criteria issued by the Board. There is an appraisal process, called an 'audit'. If the documentation is assessed as non-compliant with the criteria, the applicant is given a further opportunity to submit amended documentation. At the time of the application giving rise to this case, there was a facility for a further audit. The applicant was given one more opportunity, and a final decision was then made addressing the third round of documentation. 9 The Tribunal was informed at hearing that to date only about 50 of the 500 organisations that had approval under the old scheme have won approval under the new scheme. 10 The applicant is authorised to provide many courses, mainly to the retail sector. The principal of the applicant company, Ms Targett, appeared at the hearing. She supplied testimonials from several major Australian retail businesses attesting to the quality of her courses. She expressed her support for the attempts now taking place to put firmer accreditation standards in place, and to weed out of the training industry providers with low standards who had enjoyed generous government subsidies. Ms Targett acknowledged that standards of the kind applied in this case were familiar to training organisations. Decision Making Process in this Case 11 In this instance the procedure as outlined above (which then included the third round) was followed. The applicant was unsuccessful on each occasion. 12 The application was first 'refused' by way of a letter dated 4 March 2005 from Ms Willis, who was then Director, VETAB Quality Assurance Services. The letter is headed 'Application for Extension to Scope of RTO registration – not approved at this stage'. The letter advised that the Board was not satisfied that the application was in full compliance with the relevant standards known as Australian Quality Training Framework (AQTF) Standards for Registered Training Organisations. 13 During the desk audit stages, detailed tables were provided to the applicant setting out the Board's areas of objection to the applicant's documentation. By letter dated 31 August 2006 the applicant was given a final opportunity to respond to the Board's negative appraisal of the applicant's application. That letter attached a 20 page audit report prepared by Ms Sue Honeywell, an officer of the Board. The applicant made its last submission by way of documentation dated 14 September 2006. While assessed as being compliant in relation to many matters, it was considered to be non-compliant in several respects. As a result the Board did not approve the application. 14 The Board communicated its final decision by letter dated 3 October 2006, again from Ms Willis, who by this time was General Manager of the Board. It referred to an assessment undertaken by an external consultant, Ms Meyrick Gilchrist dated 2 October 2006. She said: 'The evidence to demonstrate a coherent assessment process, valid and reliable assessment tools or a meaningful validation policy and plan has not been provided to understand and implement the requirements of the Training Package and of the TAA Certificate IV qualification.' 15 The letter noted that this decision did not preclude the applicant from making a further application at a future date. 16 The applicant lodged its application for review with the Tribunal on 6 November 2006. The Board filed its documentation. The applicant filed further documentation on 2 January 2007. The Board examined that documentation. Aspects of the Application Considered by the Board to Remain Unsatisfactory 17 When the matter came on for hearing on 28 February 2007, the Board informed the Tribunal that the additional documentation filed by the applicant on 2 January 2007 included material which met some of its objections. It advised that the Board now withdrew some of its earlier objections but it remained dissatisfied with the adequacy of the documentation in terms of compliance with Standards 8.1 (i), (iii) and (vi) and Standard 9.2 of the ATQF Standards. In that regard, it relied on and agreed with the comments of Ms Gilchrist. 18 The relevant Standards and Ms Gilchrist's assessment follow. 19 Standard 8.1(i), (iii) and (vi). The relevant ATQF standards are: Standard 8.1 8.1 The RTO must ensure that assessments (including RPL (Recognition for Previous Learning)): i comply with the assessment guidelines included in the applicable nationally endorsed Training Packages or the assessment requirements specified in accredited courses iii are valid, reliable, fair and flexible vi involve the evaluation of sufficient evidence to enable judgements to be made about whether competency has been attained. 20 Gilchrist Assessment. Ms Gilchrist advised as follows: AQTF 8 I hardly know where to start! The assessment documents submitted do not conform to Training Package assessment guidelines (particularly the principles of assessment) nor to the rules of evidence, viz: All assessment must be valid, reliable, flexible and fair. Assessment evidence must be valid, sufficient, current, authentic. Analysis of integrated assessment document for DEL 401A, DEL403A, DEL404A ASSESSMENT Validity The Evidence and Assessment Plans for each unit are valid, in that they address the elements and performance criteria for each, together with examples of specific evidence required. However, these documents are inconsistent with the eight steps presented in the assessment task. Assessor Instructions are not reflected in instructions to learners, nor in the assessment tasks itself. The "integrated" assessment task (consisting of "components" and eight steps) is invalid, as follows: It does not cover all the elements of the three units It includes elements from other units (eg: Step 3 = TAADES501A; Steps 7&8 = TAADEL402A It confuses the units, which means it is not possible to assess the validity of the different sections of the task It includes an assessment tool designed for TAADEL402A, which is thus not valid in this context> the tool itself is based on a rating scale, which is inappropriate for summative competency assessment. Reliability Assessor Instructions, Learner Instructions and the eight assessment steps are imprecise, lacking clear, logical instructions to assessors and learners. The tasks to be undertaken are confused and incomplete. (Refer: feedback from Industry Validation Meeting 6 Sept, viz "all trainers at the meeting agreed that the assessment tasks were very 'wordy' and just a general outline of key requirements was required".) The lack of clarity about what candidates are actually supposed to do, together with the generalised nature of instructions to assessors mean that consistency in evidence gathering and assessment could not be achieved. Fairness While holistic assessment is to be encouraged, its implementation should not be at the expense of quality in assessment. Assessment strategies and tasks should always provide the candidate with a reasonable opportunity to produce all the evidence of competency required for each of the units being assessed. Further, the tasks involved should be clear and unambiguous, so that they do not cause confusion and are not subject to an unacceptable range of interpretation either by assessors or by candidates. This is not the case with this assessment. Its lack of validity and reliability would make it unfair to all candidates. Assessor Instructions are not consistent with the rest of the document, allow assessors a great deal of leeway in what evidence they gather and contain a great deal of information not provided to learners/candidates. Flexibility To meet the requirements of both fairness and flexibility, assessments need to be structured clearly and unambiguously in the first place, so that any adjustments made to accommodate special needs of candidates or clients can be made in an open and transparent way. The lack of a clear structure in this assessment would not allow for transparent adjustment. EVIDENCE Validity It follows that as the tasks itself is not valid, the evidence gathered would not be either. Sufficiency The assessment does not provide candidates with the opportunity to meet all the specific evidence requirements of the three units involved. Additional note Please note that all the findings related to this one assessment apply equally to the other three submitted. 21 Standard 9.2. This standard is as follows. 9.2 The RTO must validate its assessment strategies by: i reviewing, comparing and evaluating the assessment processes, tools and evidence contributing to judgements made by a range of assessors against the same competency standards*, at least annually ii documenting any action taken to improve the quality and consistency of assessment. * These may be internal processes with stakeholder involvement or external validations with other providers and/or stakeholders.' 22 Gilchrist Assessment. Ms Gilchrist advised as follows: AQTF 9.2 Assessment Tool Validation Plan for TAA40104 does not describe a true validation plan or process. Documents attached are not relevant to this standard. Industry Validation Meeting and Communications Summary documents brief feedback from those present re "assessment tasks". This is inadequate evidence for this standard. Feedback from Ctrain is a worry in the sense that the RTO had to ask for such basic advice in the first place. Feedback in itself is not very helpful and not addressed in any meaningful way by the RTO (as documented in handwritten comments on the feedback sheet). … Conclusion My judgement is that the RTO's failure to provide evidence of a coherent assessment process, valid and reliable assessment tools or a meaningful assessment validation policy and plan indicates a failure to understand and implement the requirements of the Training Package and of the TAA Certificate 1V qualification.' Tribunal's Assessment 23 It will be seen that the debate at this point is one between an applicant with substantial experience in the delivery of a variety of courses and curriculum experts who have special expertise in the appraisal and evaluation of course proposals and course design. 24 The Tribunal's task is to make the correct and preferable decision in relation to the matter under review, based on all current, relevant material: Administrative Decisions Tribunal Act 1997 (ADT Act), s 63. 25 In this instance, the matters in dispute are ones of a technical nature. The Certificate IV course, as the Tribunal understands the material, seeks to impart to its students an ability to undertake training methodologies. The Board is concerned to ensure that trainers go about implementing these methodologies or components in particular industries in a way which is generally consistent as between industries. The Board does not have the necessary level of assurance that the applicant's proposed course will meet these objectives. The Board is seeking to avoid the possibility of inconsistent understandings of the purpose of these components leading to inconsistent implementation, with the risk that follows to the integrity and credibility of the specific trade and other certificates that result from the courses provided by those trainers. These are matters, obviously, of great public importance. 26 Ms Willis outlined to the Tribunal her highly-impressive record of qualifications in vocational and educational training. She clearly has relevant expertise to bring to the kind of assessment made in this case. She showed a close familiarity with this case. In addition, the Tribunal had before it the audit reports and the Gilchrist Memorandum. Ms Targett, in reply, made some specific criticisms, to which Ms Willis gave responses the Tribunal considered persuasive. Ms Targett did not have any independent expert appraisal of her documentation. 27 In these circumstances, the Tribunal must prefer the expert judgment of Ms Willis who was satisfied by the assessment provided by Ms Gilchrist. 28 As the Tribunal indicated to Ms Targett at hearing, the Board's concerns have reduced over time. The applicant remains free to continue revising and resubmitting its documentation. Procedural Matters 29 So far as the Tribunal is aware, this is the first case of this kind to reach the Tribunal. 30 While the Board has at no time questioned the jurisdiction of the Tribunal to review the decision of which the review applicant complained, as noted earlier in these reasons its correspondence with the review applicant leading up to the decision that gave rise to the application for review does not refer precisely to the head of statutory power that is being exercised or uses terminology of the kind found in the list of reviewable decisions in s 47. It will be seen that s 47 does not have an express category referring to decisions to refuse an amendment to the scope of registration, which is the way the Board's correspondence typically referred to the decision it was being asked to make. 31 After the hearing and while in the course of preparing the reasons for decision, the Tribunal asked the solicitor to the Board, Mr Cribb, to assist the Tribunal by identifying precisely the category of decision within the list given in s 47 that is under notice in these proceedings. Mr Cribb submitted that the decision is best understood as one that belongs to the category to which s 47(a) refers – that of 'refusing to register a training organisation under section 12'. As noted earlier in these reasons, the Tribunal agrees with that characterisation. 32 It is plain that this is not a case about outright refusal of an application for registration, and s 47(a) might perhaps have been interpreted in that way. Section 47(a) should, as Mr Cribb submits, be given a more flexible interpretation consistent with the objects of the Act and the nature of the registration function. Section 12 is a central provision of the Act. Section 12 provides: ' 12 Board to decide application for registration (1) On receiving an application for registration as a training organisation, the Board may: (a) register the applicant as a training organisation, or (b) refuse to register the applicant. (2) In deciding the application, the Board is to have regard to the RTO standards, the RCAB standards and the registration and accreditation guidelines. (3) The Board may register the applicant as a training organisation only if: (a) on registration under the application, the applicant will not otherwise be registered as a training organisation by any other registering body, and (b) the Board is satisfied that the applicant's main place of business is, or all or most of its operations will be conducted, in this State, and (c) the Board is satisfied that the applicant complies with the RTO standards. (4) In considering whether an applicant complies with the RTO standards, the Board may conduct a compliance audit of the applicant and have regard to the findings of that audit. (5) Subsection (3) (c) does not apply in relation to an application if: (a) the application is made by a training organisation registered by another registering body, and (b) the training organisation has received a notice from the other registering body under a corresponding law for section 19, and (c) the application does not seek an amendment of the training organisation's existing scope of registration or registered conditions. (6) The Board may, despite any other provision of this section, refuse to register an applicant as a training organisation if the Board is satisfied that the applicant is not suitable to be registered as a training organisation. In determining whether an applicant is suitable to be registered, the Board may have regard to such matters as it considers relevant (including the registration and accreditation guidelines). (7) If the Board decides to grant the application, the Board must: (a) register the applicant as a training organisation, and (b) register the training organisation's scope of registration, and (c) if the Board imposes any conditions under section 13—register those conditions in relation to the training organisation, and (d) provide the training organisation with a certificate of registration. (8) The Board must comply with subsection (7): (a) as soon as practicable after approving the application, or (b) if the application is made in conjunction with an application for the cancellation of a training organisation's registration under a corresponding law for section 19—as soon as practicable after the cancellation under the corresponding law is registered by the other registering body. (9) Subject to section 33, an official university may not be registered as a training organisation.' 33 It will be seen that one of the duties of the Board – under s 12(7) – is to register 'the training organisation's scope of registration'. 'Scope of registration' is a defined term (s 4) and means the operations that the organisation is authorised to provide by its registration. As already noted, the applicant in this case was seeking an addition to the 'scope of registration'. By refusing the application, the Board was engaged in a refusal of an application for registration to that extent. The kind of uncertainty that this discussion highlights should, the Tribunal suggests, be attended to by an amendment to the Act. 34 It was unclear when the application for review was lodged with the Tribunal whether there had been an internal review of the Board's determination. The procedures of decision-making of the Board, as revealed by this case, are of a relatively-consultative kind, and perhaps do not fit well the methodology of administrative decision-making contemplated by the ADT Act. The general principle reflected in the ADT Act is that primary administrative decisions should be the subject of internal review before an application for review by the Tribunal is made. (There is a facility to have the requirement for internal review excluded: see s 53(11) and Administrative Decisions Tribunal (General) Regulation 2004, cl 11, but no exclusion applies to any of the reviewable decisions listed in s 47 of the Act.) 35 The parties agreed at the first directions hearing held on 12 December 2006 that there had been no internal review stage, and that there was only one 'determination', i.e. the one made by Ms Willis in October 2006. Following application at the directions hearing, an application not opposed by the Board, the Tribunal dispensed with the requirement of internal review in exercise of the discretion given by s 55(2)(c). 36 The Board should give attention to the desirability of making express reference in its correspondence and decision-making procedures to the category of 'reviewable decision' it is engaged in making. It should give attention to aligning its decision-making procedures in relation to the making of reviewable decisions with the requirements in that regard imposed by the ADT Act, Chapters 5 and 6. Order Decision under review affirmed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.