Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Security Training and Tactics Pty Ltd v Australian Skills Quality Authority [2012] NSWADT 178 Hearing dates: 13, 14, 15 March and 27 and 30 April 2012 Decision date: 29 August 2012 Before: Magistrate N Hennessy, Deputy President Dr A Rice, Non-Judicial Member Decision: The decision to cancel the registration of Security Training and Tactics Pty Ltd as a Registered Training Organisation is set aside. Catchwords: MERITS REVIEW - cancellation of registration of registered training organisation - non-compliance with standards - whether applicant is a fit and proper person to be registered Legislation Cited: Administrative Decisions Tribunal Act 1997 National Vocational Education and Training Regulator Act 2011 (Cth) National Vocational Education and Training Regulator (Transitional Provisions) Act 2011 (Cth) Security Industry Act 1997 Cases Cited: Australian Academy of Commerce Pty Ltd v NSW Vocational Education Training Accreditation Board [2010] NSWADT 225 Casarotto v Australian Postal Commission (1989) 10 AAR 191; 17 ALD 321; [1989] FCA 116 McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354 Sydney Institute of Tertiary Education Pty Ltd v Vocational Education and Training Accreditation Board [2010] NSWADT 209 YG and GG v Minister for Community Services [2002] NSWCA 247 Category: Principal judgment Parties: Security Training and Tactics Pty Ltd (Applicant) Australian Skills Quality Authority (Respondent) Representation: Counsel Mr W Wilcher (Applicant) Conaghan Lawyers (Applicant) Mr P Cribb (Respondent) File Number(s): 113014 REasons for decision Introduction 1Registered Training Organisations such as Security Training and Tactics Pty Ltd (STAT) can have their registration cancelled if they do not comply with various standards. The Australian Skills Quality Authority (ASQA) cancelled STAT's registration. The Tribunal has decided to set aside that decision because even though STAT is non-compliant with some standards, those non-compliances do not justify cancellation. We note that STAT's registration expires on 20 February 2013. When STAT applies for renewal of its registration, no doubt ASQA will be looking carefully to see whether it has addressed the non-compliances that still remain. 2STAT was registered and approved to deliver training, conduct assessments and issue qualifications to students enrolled in various security and hospitality courses. On 21 February 2011 ASQA's predecessor, the NSW Vocational Education and Training Accreditation Board (VETAB), cancelled STAT's registration as a Registered Training Organisation (RTO). STAT applied to the Tribunal for a review of that decision. ASQA has allowed STAT to continue operating pending the Tribunal's decision. New legislative scheme 3Prior to 1 July 2011, VETAB regulated RTOs that provided vocational education and training in NSW. Since then the Australian Skills Quality Authority (ASQA) has taken over VETAB's role. ASQA has been substituted for VETAB as the respondent in these proceedings: National Vocational Education and Training Regulator (Transitional Provisions) Act 2011 (Cth), Schedule 1, Cl 26. 4ASQA made the decision to cancel STAT's registration under the legislative scheme that operated prior to 1 July 2011. STAT filed an application for review of ASQA's decision in the Tribunal on 14 January 2011, five months before the new scheme came into effect. The law the Tribunal must apply is the law in force when the Tribunal considers the matter at hearing: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25]. That law is set out in the National Vocational Education and Training Regulator Act 2011 (Cth) (NVR Act) and related instruments. 5The new legislative scheme is similar to the old scheme under the Vocational Education and Training Act 2005 (VET Act). The decision to cancel STAT's registration could have been made when the matter was heard in March and April 2012, under s 39 of the NVR Act. That provision gives ASQA the power to cancel registration "in any circumstances that it considers it appropriate to do so". Those circumstances include non-compliance with the conditions of registration set out in legislative instruments including the "Standards for NVR Registered Training Organisations 2011" (the Standards) and the "Fit and Proper Person Requirements 2011" (FPPRs): NVR Act, s 21-23 and s 185-186. These standards are equivalent to, but more specific than, the standards under the repealed legislation. Grounds for cancellation and Tribunal's conclusion 6The first ground for cancelling STAT's registration was that STAT had failed to comply with RTO standards as identified at an audit in July 2010. The equivalent of those Standards under the new legislative scheme is the Standards for Continuing Registration (SNRs) contained in the legislative instrument "Standards for NVR Registered Training Organisations 2011". ASQA relied on non-compliances with SNR 15.1, 15.2, 15.3, 15.4, 15.5, 16.2, 16.3, 16.4, 17.2, 17.4 and 18.1. 7The non-compliances which are the most significant relate to SNR 15.2, 15.5 and 16.4. Of lesser significance are its non-compliance with SNR 15.1, 16.2 and 17.2. The least significant breaches relate to SNR 15.3, 15.4 and 17.4. SNR 18.1 is an overarching standard requiring the Chief Executive of an RTO to comply with the Standards. While STAT is not compliant with several of the Standards, those non-compliances do not justify cancellation of its registration. 8The second ground for cancelling STAT's registration was that STAT had failed to comply with the ethical standards expected of RTOs. Under the new legislative scheme, those standards are set out in the Fit and Proper Person Requirements (FPPRs). This ground adopts the reasons given by NSW Police for not approving STAT to deliver security training and assessment for NSW security licensing purposes. As well as being registered as an RTO, a person wishing to deliver security training courses in NSW must have a master security licence issued by NSW Police and be approved to deliver the training: Security Industry Act 1997. 9We are satisfied that STAT complies with the FPPRs. Issues 10The issue in the broadest terms is whether ASQA made the "correct and preferable" decision in cancelling STAT's registration having regard to any relevant factual material and the law applicable as at the date of hearing: Administrative Decisions Tribunal Act 1997 (ADT Act), s 63. The factual material is all the material admitted into evidence at the hearing. The applicable law is that set out in the NVR Act and the legislative instruments made under that Act. 11Stated more specifically, the issues are: (1)Is STAT non-compliant with any of the Standards for Continuing Registration (SNRs) or the Fit and Proper Person Requirements (FPPRs)? (2)If so, does that non-compliance, either by itself or in conjunction with any other non-compliance, justify cancellation of STAT's registration? (3)Depending on the answer to (2), what decision should the Tribunal make? Tribunal's role 12When conducting a merits review of an administrative decision, there is no onus of proof on either party: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354 (Woodward J). Rather, the Tribunal "stands in the shoes" of the decision maker and is able to inform itself on any matter in such manner as it thinks fit: ADT Act, s 73(2). However, there is a practical onus on STAT to address the matters that it is on notice of and which have been sufficiently particularised: Casarotto v Australian Postal Commission (1989) 10 AAR 191; 17 ALD 321; [1989] FCA 116, [51] (Hill J); Sydney Institute of Tertiary Education Pty Ltd v Vocational Education and Training Accreditation Board [2010] NSWADT 209, [43]. 13The Tribunal may affirm, vary or set aside ASQA's decision: ADT Act, s 63(3). The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: ADT Act, s 73(2). Background 14STAT was approved to deliver five Training Package qualifications in security and four Training Package qualifications in hospitality. ASQA summarised the areas where it was alleged that STAT was non-compliant with the Standards for Continuing Registration (SNRs) in a document headed "Respondent's Report of Non-Compliance" filed on 30 September 2011. Mr Julius Pfull, a Principal Compliance Auditor with ASQA, gave evidence that, in his view, STAT remains non-compliant with the relevant standards despite further evidence having been provided after the audit in July 2010. We rejected an application from STAT that Mr Pfull's evidence not be admitted because he had merely adopted the evidence of the ASQA auditor rather than coming to an independent view of STAT's compliance with the SNR requirements. 15STAT led expert evidence from a consultant, Mr Mark Crawford, who had audited STAT against another set of standards, the "ISO standards" in 2009, 2010, 2011 and 2012. The ISO standards are set by the International Organization for Standardisation. While those standards are similar to the SNR standards, they do not focus on training and assessment. Mr Crawford agreed that several suggested improvements that he had made in the audits would constitute non-compliance with SNR standards. However, he said that on each occasion that he has identified areas for improvement, STAT has undertaken corrective action. Mr Crawford has not seen the material on which ASQA relied in coming to its view that STAT's registration should be cancelled. For that reason, we did not find his evidence in relation to the matters highlighted by ASQA to be particularly relevant. 16STAT also led expert evidence from another consultant, Mr Richard Turner. He assisted Mr Doslea, the Managing Director of STAT, to respond to ASQA's audits in 2009 and 2010. He advised Mr Doslea to amend certain procedures, strategies and assessments both verbally and in a report dated 25 January 2011. He does not know whether or not those changes were made and has not seen all the material on which ASQA relied in coming to its view that STAT's registration should be cancelled. Again, his evidence is of limited relevance. 17The first issue is whether STAT is currently non-compliant with any of the SNRs identified by ASQA. We begin with the most significant non-compliances which relate to SNR 15.2 and 15.5. Strategies, Assessment and Consultation SNR 15.2 - Training and Assessment Strategies 18Standard 15.2 states that: Strategies for training and assessment meet the requirements of the relevant Training Package or VET accredited course and have been developed through effective consultation with industry. 19"Training and Assessment Strategy" is defined in the Standards to mean "a framework that guides the learning requirements and the teaching, training and assessment arrangements of a VET qualification. It is the document that outlines the macro-level requirements of the learning and assessment process." 20The two elements of this strategy are firstly, that the Training and Assessment Strategy for each qualification meets the requirements of the Training Package and secondly, that it has been developed through consultation with industry. ASQA alleged that STAT had failed to comply with both these elements because: (1) re-developed SIT40307 - Certificate IV in Hospitality - (provided as a sample) the Training and Assessment strategy relies on workplace delivery and assessment, but does not include sufficient information regarding the specific requirements of the qualification to enable trainers/assessors to implement the strategy. No example provided as to how the RTO implements the training and assessment modes of delivery - information is generic - all units of competency are to be assessed by written questions, case studies and 'workplace' assessments. Evidence of industry consultation for development and validation purposes is not provided. Required qualifications for trainers/assessors are not identified. No evidence provided of arrangements with workplace providers. Training and Assessment strategy states there are no direct links between elements of units, however, SITHFAB004A Provide Food and Beverage Service, has prerequisites and the Training Package suggests holistic assessment with 6 other Units of Competency. (2) revised training and assessment strategies for previously non-compliant at audit (29 July 2010) qualifications: SIT10207 Certificate I in Hospitality, SIT20207 Certificate II in Hospitality, SIT30707 Certificate III in Hospitality have not been provided. Non-compliance with Training Package 21When Mr Doslea wrote to ASQA on 30 September 2010, two months after the audit, he said that the Training and Assessment Strategies were in "re-development" and attached the Training and Assessment Strategy for Certificate IV in Hospitality (SIT40307) dated 29 September 2010. This strategy relates to training and assessment of students who complete their courses exclusively in the workplace, rather than in a classroom. 22Mr Doslea was asked in relation to the Certificate IV Hospitality Training and Assessment Strategy, where the training plan was. Mr Doslea explained that this document is the overall strategy, not the detailed plan. He added that, "We have looked at this and found that it does not work." It was not clear what Mr Doslea was referring to when he made that comment. 23Mr Doslea said that Apprenticeship Centres in Western Australia have the role of ensuring that RTO's and employers have consulted and are in agreement as to the training plan. It is also their obligation to register training contracts and support employers/trainees/parents and guardians through every stage of the process. 24The Training and Assessment Strategy for each course is a critical document. It sets out the learning requirements and the teaching, training and assessment arrangements for the qualification. Despite being re-developed, the Training and Assessment Strategy for Certificate IV in Hospitality remains deficient. It need only outline the macro-level requirements of the learning and assessment process but it is not specific enough. For example, it does not include sufficient information regarding the specific requirements of the qualification to enable trainers/assessors to implement the strategy. No examples are provided as to how STAT will implement the training and assessment modes of delivery. 25The Strategy states that each unit of competency is to be assessed by identical means, that is by written questions, case studies and 'workplace' assessments. It may not be appropriate for these three kinds of assessment to be used for every unit of competency. The necessary qualifications of the workplace trainers have not been identified and there is a mistake in the Strategy because some units have pre-requisites which are not identified. 26The role of Apprenticeship Centres is irrelevant. The deficiencies identified are not matters which are the responsibility of those Centres. STAT has been given an opportunity to amend the Strategy so that it complies with SNR 15.1 but has failed to do so. 27STAT has not provided revised training and assessment strategies for those found to be non-compliant at previous audits. Mr Doslea said he had been advised by a VET consultant, TBS Consultancy, that 'sampling was the norm'. Consequently, as the Certificate IV Training & Assessment Strategy was the most topical, it was provided as an example. 28STAT's failure to produce revised Training and Assessment Strategies for Certificate I, II and III in Hospitality is not excusable by saying that it has adopted a sampling approach. STAT knew that the Strategies for those courses were in question and was asked to revise them. In circumstances where STAT has failed to produce revised Strategies to the Tribunal, we are not satisfied that compliant Strategies for those Certificates have been prepared. Failure to consult with industry 29There is no evidence that any of the Strategies have been informed by consultation with industry. This is a requirement of SNR 15.2. SNR 15.5 - Assessment and RPL 30This standard states that: Assessment including Recognition of Prior Learning (RPL): (a) meets the requirements of the relevant Training Package or VET accredited course; and (b) is conducted in accordance with the principles of assessment and the rules of evidence; and (c) meets workplace and, where relevant, regulatory requirements; and (d) is systematically validated. 31According to ASQA, STAT does not comply with this element of the standard because: (1) as there is no summative assessment plan or summary for the SIT40307 qualification, it is not possible to judge whether the RTO's assessment of this qualification meets Training Package requirements; (2) no evidence has been provided of contextualisation of smallPRINT materials to target groups; (3) no evidence through examples, has been provided to demonstrate how the RPL and validation processes described in learning and assessment strategies are documented and implemented. 32Mr Doslea said that summative assessment refers to the assessment of the student's learning and summarises the development of learners at a particular time. He said that assessment is conducted either at the completion of a competency or group of competencies as dictated by the training plan. He said that the summative assessment plan is developed after consultation. We accept that evidence. 33STAT submitted that because a summative assessment plan is not prescribed by the Standards, it is unfair to conclude that it is non-compliant with SNR 15.5 on that basis. Mr Pfull agreed that an "overarching assessment plan" was not prescribed by the Standards. However, he said that in relation to the Learning and Assessment Strategy, there should be a plan to assist the trainer to implement the Strategy. In this case there was no evidence as to how STAT was going to manage the whole process of assessment. 34The Standards are not prescriptive. They describe the outcome to be achieved rather than the steps that should be taken to achieve that outcome. Nevertheless, to be compliant with 15.5, STAT must demonstrate how it is achieving the outcome that assessment meets the requirements of the relevant Training Package. There was no evidence to demonstrate how assessment worked in practice, such as a plan that gave trainers guidance about how to teach the course including necessary resources. 35The absence of any documentation, including a summative assessment plan or summary for the Certificate IV in Hospitality means that we are not satisfied that the assessment of this qualification meets the Training Package requirements. 36Contextualisation means ensuring that the learning materials relate to the cohort or target group of learners. In relation to the second criticism at 15.5(2), Mr Pfull said that if an RTO is using commercial materials such as the smallPRINT materials, it should adapt that material to suit the students being trained. As no target group is identified in the Strategy, Mr Pfull's view was that it is apparent that the materials have not been contextualised. 37STAT submitted that contextualisation of the materials is not always necessary. Mr Doslea said that in any case, smallPRINT materials are only being used as Learners' Guides, not for assessment. He added that assessments have been directly mapped to the performance criteria. Sample assessments were provided in line with the Learning and Assessment Strategy for Certificate IV in Hospitality. 38The criticism of the smallPRINT commercial materials is not as significant as the absence of a summative assessment plan or summary. However, we still regard it as desirable that commercial materials are adapted to the needs of the learners rather than being used uncritically. Modifications may be needed to ensure that training is suitable for the target learners. 39The final point was that there was no evidence through examples, as to how the recognition of prior learning and validation processes described in the Learning and Assessment Strategies are documented and implemented. Mr Pfull said that despite being given several opportunities to do so, STAT had not provided any evidence of implementation. 40Recognition of Prior Learning (RPL) is defined in the Standards to mean: . . . an assessment process that assesses an individual's formal, non-formal and informal learning to determine the extent to which that individual has achieved the required learning outcomes, competency outcomes, or standards for entry to, and/or partial or total completion of, a VET qualification. 41It is not sufficient to refer to RPL and validation policy in the Learning and Assessment Strategy or in the Policy and Procedures Statement. STAT must show how those policies are being implemented including how learners are being advised of RPL and how it is being assessed. STAT has been given ample opportunity to give examples of how the process works in practice but has not done so. SNR 16.4 - Employer engagement 42This standard states that: Employers and other parties who contribute to each learner's training and assessment are engaged in the development, delivery and monitoring of training and assessment. 43The RTO does not comply with this element of the standard because: (1) As per page 504 of the Administrator's Documents filed on 30 June 2011. There is no evidence sighted in relation to trainees enrolled in Western Australia. (2) In relation to the two trainees enrolled in Western Australia, the RTO has provided no evidence to demonstrate how the employer has been consulted regarding the training and assessment to be delivered to their employees. A list of businesses/enterprises was presented but there was no evidence of consultations. 44ASQA's criticism relates to STAT's operations in Western Australia. At the hearing we were told that 100 students were enrolled with STAT - 15 hospitality students were studying in Byron Bay and the balance were hospitality and security industry students enrolled in courses in Western Australia. The only evidence before the Tribunal of any consultation with employers in that State in the 12 months prior to the 2010 audit is a minute of a meeting with an employer, Ms Collins. 45The minute of the meeting records that on 12 May 2010, Craig Murray, a contractor to STAT, met with Elanor Collins at Karratha. The purpose of the meeting was recorded as "competency selection for traineeships". The discussion was recorded in the following terms: "Selection of competencies and examination of presented learning material to ensure what is taught is in line with client requirements." The second item for discussion was "Training Start date'. The minute records that "Training will commence within 10 days on Craig's return to Karratha". 46Mr Doslea's evidence was that this minute was presented at the December 2009 audit as evidence of consultation with employers to ensure the training met the employer's requirements. Mr Doslea said that at the audit he explained that the Certificate IV in Hospitality Traineeship was adjusted following the meeting. 47The cross-examination of Mr Pfull centred on this minute. STAT submitted that Mr Pfull presented as an argumentative witness on this point. We do not accept STAT's submission that Mr Pfull was being argumentative. He attempted to answer the questions fairly and honestly. After being taken through the contents of the document, Mr Pfull conceded that the standards cannot impose upon business that there is a 10 page document created for every meeting. With respect, Mr Pfull did not say that a 10 page document was necessary. 48STAT made the point that the minute of the meeting provided some evidence of consultation. Mr Pfull said that while this may be some evidence, one minute recording some details of a single meeting with an employer is not sufficient to satisfy him that employers are engaged in the development, delivery and monitoring of training and assessment. 49Mr Pfull would have expected to see records of discussions with employers in relation to the selection of competencies, information as to the roles and responsibilities of the employer and what the employer can expect from the RTO. That information is necessary so that the employer can make a decision as to whether it wants to sign an agreement with the RTO to provide workplace training. He would also have expected to see a signed document recording the outcome of training plans or which competencies were discussed. 50When asked whether a training plan was developed as a result of this meeting, Mr Doslea said that a training plan is only drafted once the contract with the employer is signed. This is not a satisfactory response to Mr Pfull's criticism. Mr Doslea did not say if a training plan had been developed or not. 51As well as pointing to the inadequacy of the overall consultation process, Mr Pfull criticised the lack of detail in the minute itself. The name of the organisation that Ms Collins represented is not recorded and the document is not signed. 52In relation to employer consultation generally, Mr Doslea says he presented evidence to the auditor showing how he had consulted with numerous companies to further the training of their staff. He says he provided lists of employees' names obtained from the employer. According to Mr Doslea, this document showed their current level of training and the proposed level to train them to. He says he explained to the auditor that he had used this information to tender to a peak industry representative body. Mr Doslea said that he also told the auditor that the companies obtained funding for their staff to be trained and the training was successfully conducted over a 12 month period. 53The criticism in SNR 16.4 relates to the inadequate consultation with employers in relation to courses delivered in Western Australia. We agree with Mr Pfull's criticism that a single cursory minute of a meeting with one employer does not provide sufficient evidence of STAT's compliance with this standard. Continuous improvement 54SNR 15.1, 16.2 and 17.2 relate to continuous improvement of training and assessment, client services and management respectively. "Continuous improvement" is defined to mean: . .. a planned and ongoing process that enables an RTO to systematically review and improve its policies, procedures, products and services in order to generate better outcomes for clients and to meet changing needs. It allows an RTO to constantly review its performance against the VET Quality Framework and to plan ongoing improvements to its performance. Continuous improvement involves collecting, analysing and acting on relevant information collected from clients and other interested parties, including the RTO's staff. 55Clients are defined to mean "a learner, enterprise or organisation that uses or purchases the services provided by an RTO." Some of the criticisms in relation to continuous improvement overlap with one another and with other non-compliances. We will deal with them all together. 56Standard 15.1 states that: The NVR registered training organisation collects, analyses, and acts on relevant data for continuous improvement of training and assessment. 57Data is defined in the Standards to mean "the information collected about aspects of an RTO's operations and performance." ASQA's case was that: collated participant 'feedback' questionnaires are not accompanied by any individual responses. There is no evidence to demonstrate how 'improvements' identified in questionnaires have been integrated into a continuous improvement regime: targeted groups and courses are not identified. 58Standard 16.2 states that: The NVR registered training organisation continuously improves client services by collecting, analysing and acting on relevant data. 59According to ASQA, STAT does not comply with this element of the standard because: (1) As per page 503 of the Administrator's Documents filed on 30 June 2011. There is no evidence sighted of student questionnaires. (2) the questionnaire submitted is insufficient evidence to address this element; evidence of a structured system for the collection and analysis of data is required, together with samples of more targeted data gathering tools, appropriate to each of the groups providing feedback. 60SNR 17.2 states that: The NVR registered training organisation uses a systematic and continuous improvement approach to the management of operations. 61ASQA submitted that STAT does not comply with this element of the standard because: (1) while the RTO's Policy and Procedures Manual outlines a procedure to be followed with respect to continuous improvement, insufficient evidence was presented to demonstrate the implementation of the procedure. See also comments at 1.1 (SNR 15.1) and 2.1 (SNR 16.2) above. 62The non-compliances can be summarised as lack of implementation of feedback or other data which would allow continuous improvement. Feedback from students 63ASQA advised there is no issue in relation to the collection of data. The issue is the analysis of the data. Mr Pfull says he saw the collated feedback questionnaires, that is the outcomes of the questionnaires, but not the individual responses from students. 64Mr Doslea's response was that participant questionnaires have been collected and collated throughout the entirety of STAT's operation. He said collated and analysed statistics were presented to ASQA at audits in 2008, 2009 and 2010. 65The finding at audit was that STAT had corresponded with ASQA regarding the 2009 Learner Engagement and Employer Satisfaction Quality Indicator Report saying that student and client feedback is now reported accurately. ASQA went on to note that STAT has updated some key documentation as recorded in the Improvement Register. However, no other feedback mechanisms, either planned or current, were presented or discussed. Systems that would feed in to the continuous improvement imperative of the standard were not addressed. 66Mr Doslea's evidence was that during the 2010 audit, student feedback was examined. The audit report lists 705 students and 10 employers and states that: "A selection of raw learner engagement questionnaires were sighted which indicate all respondents were satisfied or highly satisfied with RTO services." The report went on to say that "No other feedback mechanism, either planned or current were presented." According to Mr Doslea, since this single adverse comment, STAT has submitted further feedback documents in the form of "smart" returns. The Learner Engagement and Employer Satisfaction forms are mandated and STAT ceased using its own forms. Under this system the student fills out a pre-course questionnaire and adjustments are made if required. Secondly, the student completes the training and a second questionnaire. Any improvement observation is then noted and raw data is put into the "smart" operating system. Finally, the RTO makes any required adjustments and ASQA receives the report. 67Ms Meers commenced working for STAT in 2000 and has been involved in several audits since that time. In relation to continuous improvement she said that she developed a form (Form 10) which was used to register improvements and record any action taken. That information was then placed on a continuous improvement register. She said she could not recall a student ever making a complaint that could not be dealt with without management intervention. 68In his 2010 audit against the "ISO standards" a consultant, Mark Crawford, identified an improvement that could be made under the heading of "management responsibilities". He said that, "Whilst quality objectives are focussed on quality training, they need to be clearly defined in the manual, including how the performance against objectives is measured i.e positive student/industry feedback". Mr Crawford was asked whether this comment suggested non-compliance with SNR 15.1 relating to continuous improvement of training and assessment. His response was that if STAT had not been conducting student surveys and documenting feedback, that would indicate non-compliance. In his view STAT was compliant. 69Mr Doslea has provided an explanation of the process that has been used and is used in relation to continuous improvement mechanisms relating to feedback from students. STAT has made significant progress in relation to compliance about feedback from students. Consultation with stakeholders and employers 70A second alleged non-compliance with the SNRs relating to continuous improvement was that: evidence to demonstrate how consultation with stakeholders, industry representatives/organisations has been undertaken to provide feedback for the continuous improvement process has not been provided: evidence is limited to general lists of stakeholders unsigned, one page minute of client meeting between E. Collins and C. Murray (12.5.10) does not provide sufficient evidence to demonstrate how the RTO liaises with specific stakeholders regarding traineeship issues and receives feedback 71Stakeholders are defined in the Standards to mean "individuals or organisations affected by, or who may influence, the RTO's services but who are not directly involved in purchasing or using the RTO's services." According to this definition, neither the employers who are contracting STAT's services nor the students are stakeholders. The point ASQA makes about the unsigned minute relates to lack of consultation with employers. That is a matter with which we have already dealt. 72In the Learning and Assessment Strategy for Certificate IV in Hospitality, STAT provides a list of Industry Contacts and industry engagement. The two industry contacts are identified as Penrith (PCC) and Security Providers Association of Australia Ltd. No further information or documentation was provided in relation to the timing or nature of the contact. We are left without evidence as to the nature and content of STAT's consultation with industry and how that consultation has allowed it to engage in continuous improvement. We are not satisfied that STAT has complied with the continuous improvement standard in relation to consultation with stakeholders. Facilities, qualifications and record keeping 73The remaining non-compliances relate to the resources available to STAT to deliver and assess the training. SNR 15.3 74Standard 15.3 states that: Staff, facilities, equipment and training and assessment materials used by the NVR registered training organisation are consistent with the requirements of the Training Package or VET accredited course and the NVR registered training organisation's own training and assessment strategies and are developed through effective consultation with industry. 75"Training Package" is defined in the Standards to mean "a nationally endorsed, integrated set of competency standards, assessment requirements, Australian Qualifications Framework qualifications, and credit arrangements for a specific industry, industry sector or enterprise." 76ASQA alleges that STAT does not comply with this element of the standard because: (1) no evidence has been provided relating to required analysis of materials, equipment or facilities required for delivery and assessment of SIT07 qualifications. Trainer/assessor qualifications for each course have not been identified. 77Mr Doslea's evidence in relation to this matter was that STAT now directs its training activities in the SIT package (hospitality) towards workplace delivery as part of the national traineeships program. He said that he presented to ASQA at audit detailed learners guides and assessment materials as well as samples of two competencies complete with PC mapping. According to Mr Doslea, equipment for training is provided by the employer, not the RTO, as training is conducted in the workplace. 78Mr Doslea's qualifications and experience are set out in some detail in the letter to ASQA dated of 30 September 2010. There is, however, no date provided as to when Mr Doslea obtained a Certificate IV in Hospitality. In his statement Mr Doslea writes that that qualification was obtained in 2006. Mr Doslea also included a copy of a Diploma in Quality Auditing (BSB51607) which was awarded on 26 January 2012. 79Mr Pfull conceded that this area of non-compliance could be fixed with the implementation of a new document to show the trainer/assessor qualifications for each course. He also agreed that there has been no evidence of any critical impact upon the students as a result of this reported non-compliance. We accept that evidence. SNR 15.4 80Standard 15.4 states that: Training and assessment is delivered by trainers and assessors who: (a) have the necessary training and assessment competencies as determined by the National Quality Council or its successors; and (b) have the relevant vocational competencies at least to the level being delivered or assessed; and (c) can demonstrate current industry skills directly relevant to the training/assessment being undertaken; and (d) continue to develop their vocational education and training (VET) knowledge and skills as well as their industry currency and trainer/assessor competence. 81ASQA says that STAT does not comply with this element of the standard because: (1) Sarah Williams (nominated trainer Western Australia): no curriculum vitae provided; no evidence of SIT07 qualifications: no evidence of BSZ, TAA or TAE Certificate 4 qualification; no evidence of professional development planning. (2) Revised staff matrix which accurately identifies which qualifications and units of competency each staff member is able to deliver and assess to meet all AQTF requirements of a qualification has not been provided. 82According to Mr Doslea, this information has been provided on a number of occasions. He has provided his curriculum vitae including a submission to the NSW Food Authority in relation to his approval as an accredited instructor. Between 2003 and 2010 he has delivered the THH and SIT packages in Certificates II, III and IV in Hospitality as well as writing assessment tools for some elements of the SIT package. 83Mr Doslea told ASQA in September 2010 that he was the only trainer and assessor operating in both Western Australia and New South Wales. STAT was planning to employ Sarah Williams to work as a SIT trainer in Western Australia but she withdrew her application. 84Mr Pfull under cross-examination conceded that this non-compliance could be remedied by training or creation of a new document. Further, Mr Pfull conceded that there was no evidence of any critical adverse outcome in the learning outcomes. We agree with that opinion. SNR 16.3 85This standard states that: Before clients enrol or enter into an agreement, the NVR registered training organisation informs them about the training, assessment and support services to be provided, and about their rights and obligations. 86The RTO does not comply with this element of the standard because: (1) pre-course information regarding SIT07 courses is contained in the Student Handbook dated 1/12/2010 which may or may not be provided to participants prior to enrolment, but pre-course information is not provided on the RTO's website in connection with pre-enrolment where only course titles are identified. A Student Handbook on the RTO's website is dated 1/7/2010. A sample of pre-enrolment letter relates to security courses but is only provided to participants after enrolment. 87Mr Pfull said, by way of clarification, that the version of the Student Handbook on the website pre-dates the version of the Handbook provided to the auditors. According to Mr Pfull, if the continuous improvement process was being implemented these discrepancies would have been remedied. The second point is that letters containing information about the course were provided after the students had enrolled. This does not allow students to make an informed choice about whether they wish to enrol in the course. 88Mr Doslea's evidence was that pre-course information has been provided to students over the last 10 years. Handbooks are provided to students via the website. The pre-enrolment letter confirms the information furnished to students. The Standards do not require pre-course information to be in writing but Mr Pfull made the point that to ensure that students have received and understood the information and to be able to demonstrate to the auditor that it has been provided, it is necessary to provide the information in writing. 89Mr Pfull concedes that the issue of the student handbook dates and versions could be easily remedied. In any event, Mr Pfull gives no evidence about there being any adverse critical learning outcomes as a result of this reported non-compliance. SNR 17.4 - Record keeping 90This standard states that: The NVR registered training organisation manages records to ensure their accuracy and integrity. 91The RTO does not comply with this element of the standard because: (1) WA training - student files sampled: (a) Alexandra Dahlenburg: Training Plan dated 19/2/09 Certificate IV in Hospitality (THH) - 2 visits 25/3/09 and 19/6/09 - request for early completion 1/8/09 - Certificate issued, yet no completed assessments recorded (RTO has noted verbal advice from assessor that assessment was by "on site observation"); (b) Mandela Abraham commenced 15/9/09, completed 19/11/09 in CPP30607: assessment record found student competent in Certificate IV Security and Risk Management but the qualification title on the Competency record was Certificate III in Investigative Services (RTO has stated error was a clerical one and has been corrected): evidence not provided; (c) Amanda Jackson commenced 15/9/09 finished 19/11/09: assessment record found student competent in Certificate IV Security and Risk Management but the qualification title on the Competency record was Cert III in Investigative Services. (RTO has stated error was a clerical one and has been corrected) evidence not provided; (d) Leslie Webb commenced 30/11/09 completed 21/4/2010. Enrolled CPP50607. Competency record sheet indicates 12 units have been assessed. However only sign off on list of modules for 7 units. Training Strategy indicates 15 units (RTO's staff advised to ensure all activities in future are noted in detail); in the case of each of the foregoing participants, incorrect information and testamurs would have remained if not revealed by audit sampling; (2) current enrolments in Cert IV Hospitality in WA: Training Plan incorrectly states course title as 'Hospitality Supervision': the assessment methods used are not consistent with the Learning & Assessment Strategy - for example, Questions & Answers is the assessment method listed in records for Paula Giffen, for unit SITHIND003A, but this method is not indicated in Learning & Assessment Strategy; (3) personnel files were not systematically maintained: no systematic version control/register was evident (RTO states issues remedied, but no evidence provided); (4) while the RTO has advised an AVETMISS compliant database has been installed (Wise.net), no evidence (eg printouts) has been provided to demonstrate implementation; (5) the RTO has not demonstrated that records are managed to ensure accuracy and integrity. 92These matters were all raised in the July 2010 audit. 93Mr Doslea's response in relation to Alexandra Dahlenburg is that he can confirm that all assessments were carried out on site and in the workplace and the record books reflect that fact. 94In relation to Mandela Abraham and Amanda Jackson he says that he offered evidence of correction at the audit however it was not recorded. 95In relation to Leslie Webb, Mr Doslea says that he informed the auditors that Mr Webb was the CEO of an RTO and had presented confidential evidence to satisfy the competency requirements, however his explanation appears to have been ignored. 96In relation to 17.4(2), Mr Doslea said that he has submitted re-written Learning and Assessment Strategies. 97In relation to 17.4(3), Mr Doslea says that the auditors saw the AAA administrative system which incorporates versioning. He also says that he offered the register at each audit. 98In relation to 17.4(4), Mr Doslea and Mr Murray both say that in 2008 ASQA had previously found STAT to have a compliant AVETMISS system. AVETMISS is the Australian Vocational Education and Training Management Information Statistical Standard. It is a nationally agreed set of rules that facilitates the collection of consistent and accurate information on the vocational education and training sector. 99When ASQA audited STAT in January 2008, it made the following findings: The RTO has a fully functioning AVETMISS compliant record-keeping system. 100The 2010 auditors had found the system to be non-compliant but had not asked for printouts or reports to show how the system worked. ASQA submitted that even if STAT complied with this requirement in January 2008, that does not mean that it complies today. The criticism is that while STAT has the AVETMISS database, there was no evidence as to how it had been implemented. 101In relation to l7.4(5), Mr Doslea says that all the matters in relation to student files have been remedied. 102Mr Pfull did not know whether any critical adverse learning outcome had arisen from any of these matters. The two most significant matters are the failure to record the completed assessments for Alexandra Dahlenburg and the failure to record that Leslie Webb's prior learning had been recognised. These are basic mistakes which, if they recur, cast doubt on the accuracy and integrity of the assessment process. Governance - SNR 18.1 103This standard states that: The NVR registered training organisation's Chief Executive must ensure that the NVR registered training organisation complies with the VET Quality Framework. This applies to all of the operations within the NVR registered training organisation's scope of registration, as listed on the National Register. 104ASQA submitted that STAT does not comply with this Standard because it has not complied with the each of the Standards set out above. No further particulars were provided in respect of non-compliance with this standard. We do not make any separate finding about it. Fit and proper person requirements (FPPRs) Introduction 105The second ground for cancelling STAT's registration was that STAT had failed to comply with the ethical standards expected of RTOs. Under the new legislative scheme, those standards are set out in the Fit and Proper Person Requirements (FPPRs). 106In determining whether a "person" who is an NVR registered training organisation meets the FPPRs, a decision maker "must have regard to" eleven considerations. Three relevant considerations in the context of these proceedings are: (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 public is likely to have confidence in the person's suitability to be involved in an organisation that provides or assesses national qualifications; and (c)any other relevant matter. 107The FPPRs apply to a "person". A person means the RTO, an executive officer of the RTO, a high managerial agent of the RTO or "any person (who) exercises a degree of control or influence over the management or direction" of the RTO: FPPR 5. Allegations 108As well as being registered as an RTO, a person wishing to deliver security training courses in NSW must have a master security licence issued by NSW Police and be approved to deliver the training: Security Industry Act 1997. Mr Smith, Director of the Security and Licensing Enforcement Directorate (SLED) of NSW Police, made allegations against STAT in relation to non-compliance with ethical standards. Mr Smith is responsible for administering the Security Industry Act 1997 and the associated regulatory scheme. 109In August 2009, NSW Police revoked STAT's master security licence and its authority to deliver security training. The background to those decisions was that in July 2009, following some changes to the requirements for security licences, Mr Murray, the director of STAT at the time, applied to be STAT's nominee for a master security licence. A probity check revealed that in July 2005 Mr Murray had been found guilty, but not convicted, of an offence which had became a disqualifying offence in relation to a security licence in September 2007. 110Two months after NSW Police revoked STAT's master security licence, Mr Murray sold STAT to Mr Doslea, who had been an employee of STAT. He became the Managing Director and applied to SLED for a master security licence under the name of STAT. That application was successful but it was also necessary to obtain approval from NSW Police to train security personnel. 111STAT expressed interest in being approved by NSW Police to deliver security training and assessment. Following a lengthy delay while investigations were conducted, Mr Smith wrote to Mr Doslea on 9 November 2010 refusing STAT's application for approval. The reason for the refusal was that Mr Smith was "not satisfied that STAT would, if granted approval, conduct its training and assessment activities competently and in compliance with the NSW Police Force's requirements." 112ASQA relies on the matters set out in Mr Smith's letter of 9 November 2010 to STAT for refusing its application as one of the grounds for its decision to cancel STAT's registration. In the letter Mr Smith wrote that he had taken five matters into account. One of those matters has been withdrawn. The remaining four matters can be summarised as follows: (1)misleading students about assessment requirements (Mr Murray was later convicted of an offence based on this ground); (2)following withdrawal of STAT's approval to deliver security training, entering into an agreement with another RTO, Ambassador Training Academy Pty Ltd, to pay it to assess students and issue certificates on its behalf to students who had not completed the course; (3)deficiencies in recording student's workplace assessments; and (4)an ICAC finding that STAT conducted assessments that in some cases were of such poor quality as to make the process meaningless. Conviction for misleading representation to students 113In September 2011, a year after Mr Smith wrote the letter alleging that STAT had misled students about assessment requirements, Mr Murray was convicted in the Local Court of breaching s 33(1)(a) of the Security Industry Act 1997. That provision makes it an offence to make a misleading statement, representation or promise to "induce, or attempt to induce, a person to enter into an agreement or contract in connection with the carrying on of any security activity". The maximum penalty for this offence is $22,000. 114It was alleged that STAT misled students sitting for Certificate II in Security courses by offering them a 5 day training course and informing them that that course would replace two workplace assessments required for them to obtain full security licences. Mr Murray, the sole director of STAT at the time, admitted that that offer was made in ignorance of the fact that in 2006 NSW Police had imposed as a condition of approval, that students doing such courses undergo four workplace assessments. 115The Local Court found the offence proved and fined STAT $500. Mr Murray took full responsibility for the events that led to the conviction and admitted that he made a mistake by not keeping himself informed of the new conditions. Mr Smith admitted that NSW Police could have updated STAT's conditions of approval to add the new condition, but did not do so. 116Mr Smith agreed that the finding against Mr Murray had nothing to do with Mr Doslea. Mr Doslea was the training co-ordinator in 2009. He was not a director of STAT at that time. 117The conviction against Mr Murray is only relevant if as at the date of hearing, Mr Murray was an executive officer of STAT, a "high managerial agent" of STAT or he exercised a degree of control or influence over the management or direction" of STAT: FPPR 5. Mr Murray is employed by STAT as a training consultant on a part-time basis. He is not a director or office holder. We are not satisfied that he is a high managerial agent or that he exercises a degree of control or influence over the management or direction of STAT. In those circumstances, the conviction against Mr Murray is not relevant to the question of whether STAT complies with the FPPRs today. 118Even if Mr Murray does exercise a degree of control or influence over the management or direction of STAT, the conviction in this case is at the lower end of the scale of objective seriousness. The fine imposed represents approximately 2.5% of the maximum penalty that could have been imposed. Although Mr Murray should have been aware of the changes to workplace assessment requirements, NSW Police conceded that they did not advise him of that change. In all the circumstances, the conviction does not satisfy us that STAT does not meet the FPPRs. Alleged agreement between STAT and Ambassador 119Mr Smith's letter sets out the second allegation in the following terms: Following the withdrawal of STAT's approval to deliver training and assessment for security licensing purposes, STAT entered into an agreement with Ambassador Training Academy Pty Ltd whereby it paid Ambassador to issue certificates on its behalf to individuals who were assessed by STAT. 120The background to this allegation is that on 11 August 2009, STAT's master security licence was revoked. Mr Murray relinquished his directorship of STAT on 28 August 2009 and sold the business to Mr Doslea who had previously been employed by STAT as a training co-ordinator. NSW Police issued a new master security licence on 10 October 2009 with Mr Doslea as the nominated person but between 11 August and 10 October 2009 STAT did not have a master licence so they could not train, assess or issue students with certificates at that time. 121Mr Doslea says that the students who had been enrolled with STAT could not finish their training and were offered alternate RTOs. Mr Doslea said that on advice from SLED, the only way he could continue to train in security was to be approved with another RTO. He says the auditors were told that he was an employee of Ambassador. Mr Meadows, the Director of Compliance of Ambassador, sought and obtained approval from NSW Police in September 2009 for Mr Doslea to undertake the role of trainer/assessor. That was all done, he said, with Mr Smith's approval. Mr Smith agreed that he approved Mr Doslea to become a trainer/assessor of Ambassador on 28 September 2009. He also agreed that Ambassador can recognise training delivered to students by STAT and issue the appropriate qualification. 122Mr Doslea gave evidence that he was employed by Mr Meadows but that he did not get paid for any work that he did. He says that he kept a portion of the money paid by students for workplace assessments. He kept $150 and paid $50 to Ambassador. 123Mr Smith put the allegation in the following terms to Mr Meadows, in an interview on 13 May 2010: You, in your position at Ambassador issued a number of certificates for some of Andrew Doslea's STAT students - signed them off in return for payment from Andrew Doslea of $50 per student and you did so knowing that this was incorrect. You did it for monetary gain. 124Mr Smith's evidence was that at an audit of Ambassador on 21 December 2009, Mr Meadows told him that he had issued certificates to STAT students on the basis that he would receive a payment of $50 per certificate issued. During an interview on 13 May 2010, Mr Smith put to Mr Meadows that that is what he had told him. Mr Meadow's response was, "That went back to Andrew (Mr Doslea) for paying for ... doing, for doing the business programme that he wrote." Mr Smith then asked, "So you agree that, you indicated that was the financial arrangement?" Mr Meadows replied, "Yeah, and that was the arrangement that went back to Andrew." 125When giving evidence to the Tribunal, Mr Meadows denied that there was any agreement between Ambassador and STAT or that Mr Doslea had paid him any money to conduct the assessments or issue the certificates. He said that he employed Mr Doslea to write documents for the Diploma and Advanced Diploma of Business Courses for another RTO, "Alpha". He also had in mind that if demand increased, Mr Doslea could carry out training and assessment on behalf of Ambassador. Mr Doslea wrote the documents for the business courses but was not paid for that work. Instead, according to Mr Meadows, there was a contra deal whereby Mr Meadows did the paper work required to issue the certificates for former STAT students. No money actually changed hands. 126We are satisfied that after the STAT students were put on to Ambassador's data base, both Ambassador and STAT considered them to be enrolled with Ambassador. Mr Doslea had no authority to transfer those students other than as a director of STAT. Similarly, Mr Meadows had no authority to sign off on the assessments other than as an employee or agent of Ambassador. Ambassador then issued the final certificates to the students. We are also satisfied, despite Mr Meadow's evidence, that Mr Doslea paid Ambassador $50 for each student who Mr Meadows assessed. Mr Doslea has a clear recollection of that arrangement. 127We are not satisfied that this arrangement was unethical. While the arrangements were not documented and were far from transparent, ASQA did not make it clear why the arrangement as outlined by Mr Doslea should lead us to conclude that he was not a suitable person to be involved with an RTO. STAT has not breached the FPPRs in relation to this allegation. Record keeping practices 128Mr Smith's letter sets out the allegation in the following terms: STAT's record-keeping practices were so deficient that the NSW Police Force cannot be certain that any workplace assessments were undertaken by STAT, let alone determine with any confidence when and where the assessments took place, by whom, and what the assessor observed. STAT assessment records obtained by the NSW Police Force show (among other things): students having signed and dated records indicating that they were informed of assessment results several months prior to the recorded assessment date the students having signed records indicating that they were informed of the results of assessments for which the assessment record is otherwise blank assessments having been undertaken by STAT employees at a time when STAT was not the holder of a Master licence and/or was not approved by the NSW Police Force. 129In an internal memo on this issue dated 23 December 2009, Mr Smith elaborated on these points in relation to the investigation that had been carried out into STAT's record keeping practices: It appears that STAT students may have pre-signed their workplace assessment records. This suggests that the required assessments may not have actually been carried out. 130The memo also referred to an allegation that: Stuart Brooks, an employee of STAT, had signed documents indicating that he carried out assessments at a time when STAT was not the holder of a Master licence and was not an approved RTO. 131At the hearing, Mr Smith clarified that after investigating this allegation, Police were not able to establish with any confidence when the assessments were conducted. For that reason, he is not relying on any assertion that assessments were conducted when STAT was not registered. The allegation is one of poor record keeping practices only. 132Mr Smith conceded under cross-examination that Mr Brooks could have made a mistake or have been on a frolic of his own in respect to one of the student's work books. 133When interviewed about these records by Mr Smith on 13 May 2010, Mr Meadows maintained that there was nothing wrong with the workbooks and the students completed them correctly. In relation to a date that had been changed, Mr Meadows said that he did not know why that had been done but it could have been a mistake. 134Mr Doslea says that he signed all the documents on 28 September 2009, the date he was approved to be a trainer/assessor for Ambassador. 135ASQA did not adduce any evidence from a student to say that he or she had signed and dated records indicating that they were informed of assessment results prior to the recorded assessment dates. 136While we are satisfied that the omissions, amendments and discrepancies in the records disclose several examples of poor record keeping practices, the relevant test that has to be applied is whether STAT is non-compliant with the FPPRs. Poor record keeping practices, without any finding of malpractice, does not justify a conclusion that Mr Doslea is unsuitable to be involved in STAT or that STAT's registration should be cancelled. ICAC finding 137Mr Smith's letter sets out the allegation in the following terms: The Independent Commission Against Corruption found during its Operation Columba investigation that STAT had conducted assessments 'that were in some cases of such poor quality as to make the process meaningless'. 138This comment was made by ICAC in the context of criticising the regulators' handling of the security licence upgrade process. At page 40 of the Report, ICAC stated that: "The second section explores the actions and decisions of the regulators prior to and throughout the security licence upgrade process and examines their capacity to effectively regulate security training. In the decade prior to the 2007 security licence upgrade, there were a number of reviews and investigations that highlighted the corruption risks that existed in relation to the security industry generally, and security training in particular. As a result of these events, the regulators had a considerable amount of pertinent knowledge which they should have applied to the security licence upgrade to reduce the risks of corruption. However, instead of reducing the risks, the manner in which the upgrade was conducted provided increased corruption opportunities for unscrupulous operators such Messrs Moosani and Merchant and others from Roger Training Academy. It also allowed RTOs such as Security Training and Tactics Pty Limited ("STAT"), Nationwide Security Training and Portfolio Training Academy, to conduct recognition of RPL assessments that were in some cases of such poor quality as to make the process meaningless. The regulators failed to recognise this and, ultimately, the licence upgrade process failed in its objective to improve security officer skills and to eliminate undesirable security licensees and security training providers." (emphasis added) 139This comment is in the corruption prevention section of the report. 140Mr Smith gave evidence that despite ICAC including Nationwide Security Training and Portfolio Training Academy in their criticism, neither has had its registration cancelled. 141The comment by ICAC is not sufficient to justify a conclusion that STAT does not comply with the FPPRs. We do not have before us the evidence on which ICAC relied. Even if we accepted ICAC's conclusion as fact, STAT was under the directorship of Mr Murray at that time. Mr Murray attended the ICAC hearing in August and September 2011 and gave evidence. No finding of corruption was made against him. Mr Doslea, who was an employee at the time and is now the owner, had no involvement in the ICAC inquiry. Is cancellation justified? 142We have found STAT to be compliant with the FPPRs. The remaining issue is whether the non-compliances with the Standards justifies cancellation. 143ASQA has an unfettered discretion to cancel an RTOs registration in any circumstances that it considers it appropriate to do so: NVR Act, 39(1). The Tribunal stands in the shoes of ASQA. There is no guidance in the new legislative scheme as to the nature or frequency of any non-compliance that would justify cancellation. Under the old scheme, there was a National Guideline for Managing Non-Compliance that was never formally adopted by VETAB: AQTF 2007. The Tribunal held in a previous decision under the old scheme that this Guideline was not binding but provided a useful framework for considering the issues: Australian Academy of Commerce Pty Ltd v NSW Vocational Education Training Accreditation Board [2010] NSWADT 225. We have not taken this Guideline into account in this case because it has been superseded by the new scheme. 144Contrary to STAT's submission, the Tribunal may decide that the cumulative effect of non-compliances justifies cancellation even if no one individual non-compliance would have done so. Although the NVR Act states that an RTO must comply with the conditions of registration, a failure to do so does not automatically mean that the RTO's registration must be cancelled. Any failure to comply with a condition is a contravention of a civil penalty provision but does not necessarily trigger a cancellation decision: NVR Act, s 111. 145Whether or not cancellation is justified depends on the nature and frequency of any non-compliance with a Standard and its effect on learners. It is also relevant for the Tribunal to consider the likelihood that any non-compliance will continue. An indication as to that matter will be the person's history in rectifying non-compliances as they have been raised. 146Mr Murray was critical of ASQA's actions in relation to the 30 January 2009 Audit Report and the 4 February 2010 Audit Report as, in his opinion, those reports were inconsistent with earlier interactions between STAT and ASQA. ASQA submitted that, contrary to Mr Murray's views, the evidence shows a periodic (if not on-going) concern with respect to ASQA's compliance with the relevant standards. In particular, the 7 July 2008 Audit Report shows that ASQA was not prepared to renew STAT's registration and when ASQA did renew its registration in July 2008 it did so subject to a condition that STAT would be subject to a "full AQTF 2007 site audit [taking] place in December 2008" - that is, in less than six months time. 147ASQA accepts that following the 31 January 2006 Audit Report and the 7 July 2008 Audit Report, STAT was able to move from a position of non-compliance to a position of compliance when given the opportunity to do so. However, following the 2010 Audit Report, despite the fact that STAT submitted additional evidence on 8 October 2010, 4 February 2011 and again at the hearing, ASQA and this Tribunal still finds STAT to be non-compliant. 148With some exceptions, STAT has adequately addressed the issues raised by ASQA during audits. In most cases, it has been willing and able to amend and modify its practices to overcome weaknesses in its delivery and assessment of training. ASQA does not dispute that all the non-compliances are capable of being remedied. 149In relation to the effect of non-compliance on learners, the non-compliances which are the most significant relate to the Training and Assessment Strategies, the assessment plans and consultation with industry and employers. STAT needs to revise each of its Training and Assessment Strategies to address the criticisms raised by ASQA. It must also engage in and document its consultations with industry and employers. Finally, in relation to assessment, STAT needs to document its assessment plan for the Certificate IV in Hospitality. These non-compliances all have the potential to affect learners if they are not rectified. 150The remaining non-compliances are of lesser significance, but still need to be addressed. The policy of continuous improvement is fundamental to the operation of RTOs. While STAT has made progress in relation to integrating feedback from students into its system of continuous improvement, other aspects of continuous improvement need further attention. In addition, STAT must analyse materials, equipment or facilities required for delivery and assessment of the hospitality courses and include trainer/assessor qualifications for each course. Finally, STAT's record keeping needs to be significantly improved. Recognition of prior learning needs to be documented and a checking system implemented to avoid the kinds of mistakes that have been identified. 151Despite the potential effect on learners, we are satisfied that the non-compliances, if quickly and comprehensively rectified, do not justify cancellation. While there is still work to be done, the non-compliances that remain are capable of being addressed prior to STAT applying for its registration to be renewed. Orders The decision to cancel the registration of Security Training and Tactics Pty Ltd as a Registered Training Organisation is set aside. ********** 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. Decision last updated: 29 August 2012