Tribunal: Senior Member Chris Puplick AM

This review concerned the applicant’s registration as a Registered Training Organisation (RTO). The applicant primarily offered courses relating to the building and construction industries and micro-business operations. The regulating authority, Australian Skills Quality Authority (ASQA), audited the applicant’s operations after receiving a number of complaints.

ASQA found that the applicant was not complying with the required standards[1], including ensuring students were sufficiently competent and that appropriate certification was issued only to qualified learners.[2] Importantly, ASQA found there was no evidence the applicant had taken action to remedy the issues and bring itself into a compliant position. ASQA decided to cancel the applicant’s RTO registration, taking effect from 21 September 2018.

The applicant applied to the AAT for a review of that decision. At the same time, it applied to the AAT for a stay of the decision to cancel the registration from 21 September 2018, which was the subject of this decision.

The applicant submitted a number of reasons why the AAT should grant a stay. They submitted that cancellation would interrupt the studies of current students, they would have to terminate the employment of three full-time staff and 18 independent contractors and the business would face liquidation. The applicant also submitted that it was addressing the non-compliance issues and was committed to taking remedial action and it had engaged a consultant to review their policies and practices.

The AAT was guided by the general principle that an applicant for a stay of a decision is required to show that there are special circumstances that would justify the stay of execution of the judgement.[3] The AAT also took into account a range of considerations that should be assessed in considering a stay application.[4]

The AAT accepted that failing to make a stay application would result in great hardship on the applicant. The AAT agreed that without a decision to stay the cancellation it would appear that the applicant would lose both students and teachers which means it would be unlikely to be able to restore itself to its previous status and position by the time the AAT reviewed the primary matter, which was the cancellation of the registration itself.   

The AAT found that the most difficult issue for the applicant was that they had failed to take any positive remedial action once issues of non-compliance were drawn to their attention.

The AAT also pointed to issues of public interest as vitally important. The AAT found that the public interest was best served by not allowing the applicant to continue to operate when not compliant with the standards. The AAT listed issues of public interest including ensuring that students are properly assessed and certified according to the required standards and maintaining the integrity of Australia’s regulatory system. The AAT also pointed to the importance of protecting students, employers, customers and members of the general public from danger by ensuring that Standards are adhered to.

The AAT stated that the public interest tipped the scales against the applicant.

The AAT refused the application for a stay of ASQA’s decision to cancel the applicant’s RTO registration.

Read the full written decision on AustLII.

 

[2] See paragraph 34 of the full decision

[3] Re Secretary, Department of Employment and Workplace Relations and Arthur Anastasiadis [2007] AATA 1065 at 10 and see paragraph 40 of the full decision.

[4] Re Scott and Australian Securities and Investment Commission and see paragraphs 42-45 of the full decision.